Legal Updates

Employment – Discrimination on Racial Grounds – Burden of Proof

The case of Hundal v Initial Security Ltd and Another [2006] involved an employee who had a very strong Indian accent. He was employed by the first respondent to work an evening shift at the site of the second respondent. His duties involved answering the telephone, however there were complaints that he could not be understood. He was subsequently given five days notice that he would be moved to the morning shift, where he would be required to answer the telephone less.

As a result of this transfer he had his working hours reduced and was paid less. He complained to an employment tribunal that the transfer amounted to discrimination. He also complained that he was entitled to reasonable notice that he was going to become subject to reduced hours and therefore reduced pay. He claimed that the 5 day notice period was unlawful.

The tribunal asked itself in accordance with s.54A of the Race Relations Act 1976 whether the employee had managed to show on the balance of probabilities facts from which it could conclude that the second respondent had committed an act of discrimination. They concluded that he had, and that the burden of proof therefore had passed to the second respondent

However, the tribunal went on to state that the employee's transfer had been motivated by the need for the evening switchboard operator to communicate clearly and effectively with anyone making an incoming telephone call.

The employee’s submissions were then considered. He claimed that the failure to speak to him about the problem prior to him being transferred was indicative of that not being the real reason for the transfer and therefore evidence of racial discrimination. The tribunal disagreed.

The tribunal said that 'it was a matter of regret' that no one had spoken to the employee about the problem. It stated that although it could be deemed unreasonable behaviour, it was not 'evidence of discriminatory behaviour'. The tribunal dismissed the claim in relation to deductions from the employee's wages. It held that on the true construction of his contract of employment, he was not entitled to the reasonable notice contended for. The employee appealed.

He argued that the tribunal had failed to ask itself whether the employer had discharged the burden of proof under s.54A of the Act by proving an adequate explanation for not giving him a warning pursuant to paragraph 12 of the Barton guidelines. Paragraph 12 of the Barton guidelines requires a tribunal to assess whether the employer had proved an explanation for the facts of a case from which inferences of discrimination could be drawn. The tribunal also has to assess whether it was adequate to discharge the burden of proof on the balance of probabilities that race was not a reason for the treatment in question. He also argued that the tribunal was in error in dismissing his claim for the unlawful reduction in his wages.

The appeal was allowed in part.

It was held that the Barton guidelines were not a substitute for the wording of s.54A of the Act. The tribunal found that the burden of proof had been discharged by the respondents, which therefore included the explanation for the absence of any warning. The tribunal also found a further explanation for the employee's transfer to the morning shift, namely that the respondents had behaved unreasonably. The tribunal went on to consider the failure to warn itself as 'treatment' rather than as an 'explanation' for the employee's transfer. Although the tribunal had not set out the specific words that the respondents had 'discharged the burden of proving an adequate explanation' in relation to the failure to warn, if the whole decision was examined, it was clear that the tribunal had correctly applied the law.

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© RT COOPERS, 2005. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.


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