Welcome to our August HRizon employment newsletter. We consider important decisions regarding employer dress codes and the burden of proof in discrimination claims. We also highlight other recent employment law cases and HR news from the last month, including the latest raft of COVID-19 related employment tribunal decisions.

In the Supreme Court:

Discrimination: the claimant bears the initial burden of proof

In discrimination claims, if the worker proves facts from which the tribunal could conclude, in the absence of an adequate explanation, that the employer has (or is to be treated as having) committed an unlawful act of discrimination, harassment or unequal pay, the tribunal must uphold the complaint unless the employer proves that it did not commit (or is not to be treated as having committed) the act complained of (s136 Equality Act 2010). This definition was introduced in 2010 and differs from the burden of proof provisions of the legacy legislation. The Supreme Court recently considered: (1) Whether the new wording has altered the burden of proof in employment discrimination cases; and (2) When a tribunal may draw adverse inferences from the absence of a potential witness.

The worker (E) worked as a postman for the respondent, Royal Mail. He was born in Nigeria and identifies as a black African and Nigerian. He has qualifications in computing and wished to obtain a managerial or technical role within Royal Mail. Between December 2011 and February 2015, E applied unsuccessfully for over 30 vacancies. In June 2015, E brought a claim against Royal Mail in the employment tribunal (ET) alleging that the rejection of his applications was the result of direct or indirect discrimination because of his race. During the ET hearing, Royal Mail did not call as witnesses any of the many individuals who had dealt with E's unsuccessful job applications. It relied instead on evidence given by two managers who were familiar with the recruitment processes, who gave evidence as to how, in general terms, appointments were made. E argued that the ET should have drawn adverse inferences from the fact that none of the actual decision makers gave evidence. The ET dismissed E's discrimination claims. E successfully appealed to the Employment Appeal tribunal (EAT), but that decision was later overturned by the Court of Appeal. The Supreme Court dismissed E's appeal and held:

Burden of proof: Although the wording of s136 says 'if there are facts from which the court could decide', rather than 'where ... the complainant proves facts' as the legacy legislation had done, this did not mean that there had been a substantive change in the law. ETs are required at the first stage to consider evidence from all sources to rebut or undermine a claimant's case (but at this stage must ignore any explanation given by the employer for the treatment complained of). If the claimant is able to prove, on the balance of probabilities, facts from which an unlawful act of discrimination can be inferred then at that stage the burden of proof shifts to the employer to explain the reasons for its treatment of the claimant.

Drawing adverse inferences: Tribunals are free to draw, or decline to draw, inferences in the case before them using their common sense. In deciding whether to draw an adverse inference from the absence of a witness, relevant considerations will include whether the witness was available to give evidence, what evidence the witness could have given, what other evidence there was bearing on the points on which the witness could have given evidence and the significance of those points in the context of the case as whole. How such matters should be assessed cannot be encapsulated in a set of legal rules. The ET had been entitled not to draw an adverse inference from the absence of the relevant decision makers. Had an adverse inference been drawn, E would still have needed to prove 'something more' than the fact that the recruiters had been aware of his race, and that the successful candidate was of a different race, in order to shift the burden of proof to Royal Mail to explain its decisions not to recruit E. (Royal Mail Group Ltd -v- Efobi [2021] UKSC 33)

In the Scottish Court of Session (Inner House):

Was teacher unfairly dismissed after criminal charges of possessing indecent images of children were dropped by the CPS?

If an employee is charged with (or convicted of) a criminal offence, the employer must consider the facts of the case and decide whether the employee's conduct is serious enough to be treated as a formal disciplinary matter. Rule 31 of the Acas Code of Practice on disciplinary and grievance procedures confirms: 'If an employee is charged with, or convicted of, a criminal offence this is not normally in itself reason for disciplinary action. Consideration needs to be given to what effect the charge or conviction has on the employee's suitability to do the job and their relationship with their employer, work colleagues and customers.'

The Inner House of the Court of Session (the Scottish equivalent to the Court of Appeal in England) recently considered whether the dismissal of a teacher, after the prosecution dropped criminal charges of possessing indecent images of children, was fair. A schoolteacher with more than 20 years' experience, was charged with possession of indecent images of children. The police searched his property under warrant, due to intelligence that indecent images of a child(ren) had been downloaded to an IP address associated with him. The prosecutor reviewed the evidence and decided not to prosecute because of uncertainty as to precisely who had downloaded the images (his son and his friends also had access to the computer and IP address). The employer's own investigation concluded that there was insufficient evidence to conclude that the teacher was responsible for the images, but nor could it be confirmed that he had not been involved. This gave rise to safeguarding concerns and to reputational risk. It was concluded that he posed an unacceptable risk to children and he was dismissed. The employer dismissed the employee and an ET held that he had been fairly dismissed. The EAT disagreed on appeal and ruled that his dismissal was unfair.

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