Employment Law Advocates

In my last dark law post, I discussed the scepticism of tribunals regarding discrimination claims about acts which do not appear to be discriminatory on their face. It might be thought that the situation would have changed since it has become possible for the burden of proof to be reversed but, in fact, this has not really happened at all, for largely the same reasons as those that were outlined in the earlier post.

A reluctance to apply the reverse burden of proof strictly is understandable, particularly in cases where there is no jurisdiction to consider unfair dismissal. An employer who has dismissed an employee with less than a year of service for an entirely arbitrary reason is unlikely to want to go into detail about the thought processes involved, but it would be entirely unjust to make a finding of discrimination in these circumstances. In practice, this means that tribunals will often accept dubious reasons, or find entirely unpleaded reasons of their own, for dismissal in order to ensure that the burden is discharged where it is fair to do so. This tendency is only increased by the very unfortunate tactic of pleading discrimination where a complaint is really one of unfair dismissal, as a way of trying to evade the lack of jurisdiction.

However, employers should still remain wary of cases like these. They are rarely won by the claimants but are sometimes lost by the respondents who are afraid of scare stories about tribunals who find in favour of employees for obscure reasons, and therefore decide that it is wise to lie about embarrassing but non-discriminatory motives. Such scare stories are completely unfounded but tribunals have been known to allow the reverse burden of proof to operate when told such lies, even if there is no direct evidence of any discrimination. This seems harsh but actually makes a great deal of sense. If a person is lying about the basis for a decision, it is clearly possible that discrimination is part of the reason and, if this did not result in an adverse finding, the practice of lying to cover up unlawful acts will no doubt be encouraged. Parties without legal experience tend to underestimate the ability of tribunals to work out whether a witness is telling the truth and the advice to them is simple. Tell the truth, however silly it will make you feel and, if there has not been any discrimination, you will win. Lie and you will lose.