Ladele’s flawed burden of proof reasoning redux

The main failing of the tribunal’s decision in Ladele was its failure in applying the reversal of the burden of proof, provided by the discrimination statutes and the leading case of Igen v Wong. In Ladele, the Claimant submitted that she had suffered a detriment, the tribunal found the first stage had taken effect to reverse the burden, but then treated the issue as purely one of fact as to whether the Respondent could disprove the Claimant’s factual case. It did not then go on to consider the correct hypothetical comparator and whether he would have been treated differently.

The recent successful appeal to the EAT of a case of race discrimination (alas, by a tribunal chaired by the same Employment Judge as Ladele), London Borough of Camden v Miah [2009] UKEAT, demonstrates the same problem. Per His Honour Judge Reid:

…the onus of proof does not shift simply on proof of a difference in status and a difference in treatment (save to the extent that there was evidence that no one else of any race had been required to undertake a test of the type administered by Dr Doctor). In this case there was no attempt to prove any difference of treatment. The material available was simply that the Claimant had suffered a number of unfavourable acts and that he was of Asian Bangladeshi origin. There was nothing to suggest any comparator of a different race would have been treated any differently. In our judgment the material before the Tribunal did not disclose any basis on which the Tribunal could properly have found that the onus of proof had passed. The Tribunal was entitled to find (as it did in its unappealed findings) that the Council’s dismissal of the claimant was substantively unfair, but that is very different from finding race discrimination in the events leading up to the dismissal.

Thank you to Alan Beazley of the Employers’ Forum on Age for telling me about this case. For discussion of Ladele v Islington see this link.