In a judgment handed down last week, Jonathan Davies succeeded in persuading the Employment Appeal Tribunal (Langstaff P presiding) to quash a finding of indirect age discrimination.
The case of Bethnal Green and Shoreditch Education Trust v Dippenaar  UKEAT 0064/15/JOJ is of wider interest to practitioners as it clarifies how the statutory reversal of the burden of proof should be applied to the issue of establishing the PCP and group disadvantage in indirect discrimination claims. Both those bringing and defending indirect discrimination claims should consider this decision carefully.
The Employment Tribunal found that a teacher was ‘managed out’ because her considerable experience made her more expensive to employ than a new recruit. She succeeded before the Employment Tribunal in her claim for indirect age discrimination.
However, the Employment Appeal Tribunal agreed with Jonathan Davies’ submissions that, in concluding that there had been indirect age discrimination, the Employment Tribunal had:
The findings of the Tribunal were insufficient to hold that there was a PCP or group disadvantage. The Claimant had failed to adduce any evidence of anyone else in her age group being managed out. Even if such practice was properly established, there was no evidence that it had caused others in the Claimant’s age group particular disadvantage. Those two findings were essentially criticisms of the Employment Tribunal’s failure to exercise its fact finding function properly. However, the fact that the Employment Appeal Tribunal was prepared to quash those findings demonstrate that practitioners should consider carefully how each element of the test for indirect discrimination can be properly established by adducing relevant and probative evidence.
Given there was insufficient evidence establishing the existence of a such a practice, the question then arose as to whether the Employment Tribunal was entitled to rely on the statutory reversal of the burden of proof in order to fill the gap in the Claimant’s evidence.
In Project Management Institute v Latif, a reasonable adjustments case, Elias J as President said at paragraph 45:-
“…we very much doubt whether the burden shifts at all in respect of establishing the provision, criterion or practice, or demonstrating the substantial disadvantage. These are simply questions of fact for the Tribunal to decide after hearing all the evidence, with the onus of proof resting throughout on the Claimant. These are not issues where the employer has information or beliefs within his own knowledge which the Claimant cannot be expected to prove. To talk of the burden shifting in such cases is in our view confusing and inaccurate.”
More recently, the Court of Appeal appeared to suggest a more liberal application of the statutory reversal of the burden of proof in the case of Essop v Home Office (UK Border Agency)  ICR 1063 (see paragraph 66 in the judgment of Sir Colin Rimer), albeit not precisely in relation to the question of proving the PCP. The Claimant also suggested before the EAT that Jennings v Barts and the London NHS Trust UKEAT/0056/12 (5th. February 2013) might be read as suggesting that it would wrong to read Latif as casting an evidential burden on the Claimant in establishing the PCP.
However, Langstaff P, held that:
“Though obiter, Elias J’s observations [in Latif] are compelling. Though expressed in a claim relating to whether a duty to make reasonable adjustments had been broken, they have persuasive effect more generally in respect of that which is needed to establish a PCP. In my view, they support a conclusion that before a Tribunal can properly reverse the burden of proof in a claim of indirect discrimination, it must be satisfied of the primary facts which would enable it to do so, and that these are for the Claimant to prove.”
He therefore held that the Employment Tribunal’s use of the burden of proof provisions could not be used to establish either the PCP or the disadvantage, since these were necessary primary findings of fact before the burden could be reversed.
The decision as to age discrimination was therefore quashed.
The full judgment can be found by clicking here.
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