The shifting burden of proof in discrimination proceedings

The Employment Appeal Tribunal decision in Webster v Brunel University (14 December 2004) found that the employee had successfully established a prima facie case of discrimination, although she failed to prove that the discriminatory act she complained of had been committed by her employer. 

The burden of proof

Section 54A of the Race Relations Act 1976 and section 63A of the Sex Discrimination Act 1975 establish rules about the burden of proof requirements in discrimination cases.

In general terms they ensure that once an employee has established facts which constitute a prima facie case of discrimination the employer must then prove that there was a non-discriminatory reason for the acts or omissions that the employee has complained of. 

Direct evidence is rare

The common law has long accepted that applicants rarely have direct evidence of discrimination, so any evidence of discrimination normally consists of inferences drawn from primary facts.

If the primary facts indicate there has been discrimination of some kind, the employer must give an explanation and, if it does not provide a clear and specific explanation that satisfies the tribunal the complaint will succeed.

Webster v Brunel University

Ms Webster had worked for Brunel University as a help desk officer since September 1997.  She brought race discrimination claims to the Employment Tribunal as a result of the respondent’s perceived failure to adequately investigate complaints of racism against her.

The appeal to the Employment Appeal Tribunal was in respect of a particular complaint to the University about a telephone conversation, which had been dismissed at the tribunal.

While giving advice over the phone in her capacity as an IT help desk officer Ms Webster heard laughter in the background and the word “Paki”. She considered this an act of race discrimination for which the respondent was vicariously liable. 

The tribunal found that in all probability Ms Webster did hear the word “Paki” but that it was not clear whether the individual responsible was a member of the university’s staff or one of many visitors to that office.

The original tribunal had failed to find a prima facie case that discrimination had taken place as it had not been established that the speaker was an employee of the university. The EAT reversed the decision.

In all previously reported cases the burden of proof about facts, established by the applicant about the respondent or its’ employees, and which required an explanation, was passed to the respondent. 

The Employment Appeal Tribunal ruled that the burden of proving the identity of the perpetrator formed part of the prima facie case, which should have transferred to the university, to show that there was no unfavourable treatment significantly influenced by race. 

Once the employee had established that the speaker could have been an employee, the burden should have shifted to the university to disprove that the speaker was an employee or that the words had not been discriminatory.

Webster and discrimination legislation

Both the Race Relations Act and Sex Discrimination Act seem to confirm this approach to what facts need to be established before the burden of proof shifts to the respondent. 

Section 54A of the Race Relations Act states that:

“Where the complainant… proves facts from which the tribunal could… conclude in the absence of an adequate explanation that the respondent has committed… an act of discrimination… the tribunal shall uphold the complaint unless the Respondent proves that he did not commit… that act.”

The Sex Discrimination Act is framed in identical words.

Facts from which a tribunal could conclude that the respondent is guilty of discrimination are enough to require an explanation. Proving the factual involvement of the employer is not a prerequisite as might have been previously thought – merely their involvement on a “could” basis, that is, on the balance of probabilities.

Implications of the decision

Future tribunals will have to decide, exactly, when an applicant makes a prima facie case, that the discriminatory act could have been committed by an employee of the respondent.

Would it be enough for a tribunal to find a prima facie case where only 10 people in a room of 50 are employed by the respondent? What about where there are 25 or 30 in the room?  

Indications in the Webster decision are that each case will be decided on its own merits with more than just the numbers involved and a percentage or threshold level of employee presence being the important factor.

Undoubtedly the decision will make things more difficult for employers.  Conversations at networking or marketing events held by the company, in shared buildings with stairways and lifts – and even toilets – may now lead to discrimination cases being brought against a company.

The decision may lead to a greater number of claims arising from such uncertain facts and even the possibility of an employer being found liable for the actions or comments of an individual not employed by the company. 

Alison Davies can be contacted on 020 7421 1720 or at

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