The Claimant in the recent case of Morgan v DHL Services Limited was a fork-lift driver who brough claims of race discrimination against his employer. The Claimant had allegedly been involved in separate altercations with two supervisors and a security guard. He and a colleague were accused of misconduct for their behaviour and suspended. In his Grounds of Claim, the Claimant alleged that the allegations had been fabricated and that he had been unfairly targeted due to his race.
Prior to a Final Hearing, it is common practice for a Preliminary Hearing to take place to ascertain the full extent of the Claimant’s claims and, if applicable, determine which of the Claimant’s claims should be allowed to proceed to the Final Hearing. As part of Mr Morgan’s claim, such a Preliminary Hearing was listed, which the parties attended in February 2019.
During the Preliminary Hearing, the Employment Judge questioned the Claimant in detail regarding the allegations raised as part of his claim. The initial burden of proof in discrimination cases lies with the Claimant. Only once a prima facie case has been established does the burden shift to the Respondent, who must then prove that no discrimination has taken place. The “prima facie” standard of proof at this stage is relatively low, and, as such, most Claimants clear this hurdle.
Upon hearing the Claimant’s evidence, the Employment Judge struck out all of his claims on the following grounds:
- the Claimant couldn’t explain how the alleged discrimination related to race;
- his colleague, who was of another race, was treated in the same way; and
- there was nothing to suggest that a hypothetical comparator might have been treated more favourably.
In its reasoning, the Employment Tribunal confirmed that it was not satisfied that the Claimant had presented enough evidence to support a verdict in his favour, and therefore struck out the claims.
Such a decision at a Preliminary Hearing is rare. Judges often err on the side of caution, and refrain from making a decision until all of the evidence is heard in full at a Final Hearing. Upon receiving the judgment, the Claimant appealed the decision to strike out his claims and the case was referred to the Employment Appeal Tribunal (EAT).
In his judgment, the EAT Judge quoted Employment Judge Choudhury’s summary in Malik v Birmingham City Council, noting that: “striking out a claim of discrimination is considered to be a Draconian step which is only to be taken in the clearest of cases.”
Although the original Employment Judge found that there was no chance of the claims succeeding, the EAT Judge remitted them back to a different Tribunal for consideration. He found that the original Judge hadn’t directly or sufficiently addressed the features of the claims that might have been said to give rise to an inference of discrimination or a shifting of the burden of proof to the Respondent. As such, although the claims may have been weak, the original Judge had erred in concluding that there was no prospect of success whatsoever.
What does this mean for you or your business?
Employers should always proceed with caution when facing discrimination claims. Even if the claims seem fanciful or unrelated to the Claimant’s protected characteristic at face value, there is no guarantee that they will be struck out, and Claimants may have an arguable case if it can be inferred that their treatment was in any way discriminatory.
Respondents should keep in mind that the standard of proof for prima facie cases is relatively low and Judges may be reluctant to strike out discrimination claims unless the evidence is very clear (i.e. the case is conclusively disproved).
This legal process is a source of irritation for many Respondents, who feel that Employment Tribunals should not entertain tenuous claims. Defending such claims can, unfortunately, be costly and time consuming for businesses, and it is with a great deal of frustration that many Respondents are required to proceed in line with the law as it stands.
What do you need to be doing now?
Although there is no way to eliminate the risk of discrimination claims, there are certain steps that businesses should take to minimise this risk, and put themselves in a stronger position, should a claim be received:
- employers should ensure that all employees are offered regular equality and diversity training and that this has been completed by employees at all levels of the business;
- businesses should have an up-to-date equality and diversity policy and actively commit to preventing discrimination in the workplace; and
- employers should ensure that any relevant policies are easily accessible and that all employees are familiar with their contents.
If your business is facing a discrimination claim, or you need assistance with any of the above, please don’t hesitate to contact BPE’s employment team.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.