There are few issues more complicated than the burden of proof in discrimination cases. The Equality Act specifies that where there are facts from which – in the absence of an explanation from the employer – discrimination could be inferred, then the burden is placed on the employer to prove that there has been no discrimination.
What this means in practice is that where there is an accusation of discrimination, the employer must stand ready to provide evidence as to the reason for its conduct, rather than simply rely on the employee not having enough evidence to demonstrate that discrimination has taken place.
In Olatanwo v QualityCourse Ltd Mr Olatanwo was a Nigerian national with a permanent right to reside and work in the UK. He applied for a role with QualityCourse Ltd and was accepted, subject to the usual requirement that he demonstrate that he was entitled to work in the UK. He provided this in a range of documents, but his manager was concerned that his permanent residence card was stamped into his old, out of date, passport. This did not in fact affect its validity, but the employer nevertheless sought to check his ability to work in the UK via the Home Office online checking service. Unfortunately the online form was filled in incorrectly with the manager omitting to mention crucial documents that Mr Olatanwo had in fact provided. As a result, the Home Office stated that it was unable to confirm Mr Olatanwo’s right to work in the UK and he was dismissed.
By the time the employer came to accept that he was in fact entitled to work in the UK – and that he had presented all of the documentation needed to establish that fact – Mr Olatanwo had found work elsewhere and no longer had faith in his former employer. He alleged that his treatment amounted to race discrimination because it was based on prejudiced assumptions based on his Nigerian nationality. Giving evidence for the employer, his manager said that he had only acted on the explicit instructions of members of the employer’s internal compliance team, who were not called to give evidence.
The Tribunal accepted that the burden of proof lay on the employer to prove that there was no discrimination and went on to find that the employer had discharged that burden. The Tribunal accepted that the employer had merely fallen into error because it was confused about the documentation that was required and had failed to appreciate that Mr Olatanwo had provided everything that was needed.
The EAT allowed an appeal against this finding. The error that the Tribunal had made was to treat the role of the compliance team as being merely advisory, with the line manager being the decision maker. It was clear from his evidence, however, that he was acting on the instructions of his colleagues. This meant that their mental processes were relevant to the question of whether there had been discrimination – not just in the decision to dismiss but also in the way in which the document checks had been handled. For example, the compliance team had refused to accept Mr Olatanwo’s assurances that his residence card remained valid despite it being stamped on his old passport. Could this refusal have been based on stereotypical assumptions? The case was sent back to the Tribunal to consider the matter afresh.