HRizon Employment Law Newsletter - August 2021

• Published date: 09 September 2021
• Subject Matter: Employment and HR, Contract of Employment, Discrimination, Disability & Sexual Harassment, Unfair/ Wrongful Dismissal, Employee Benefits & Compensation, Employment Litigation/ Tribunals
• Law Firm: Hill Dickinson
• Author: Ms Laura Marginson, Jeff Middleton, Kerstie Skeaping, James Williams, Michael Wright, Amy Millson and Luke Green

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...