Case law on race discrimination

[2017] UKSC 27, 5 April 2017

Issue: indirect race discrimination – reason for discriminatory treatment

These two cases were heard together by the Supreme Court.

In Essop, the Home Office required all staff to pass Core Skills Assessments to become eligible for promotion to higher executive officer posts. Statistics indicated that fewer Black and Minority Ethnic (BME) candidates and those over 35 passed the assessment but did not establish why this was the case.

Essop, an immigration officer, alleged that being required to pass the core skills test as a prerequisite to promotion was indirectly discriminatory.

The Naeem case concerned the pay of prison chaplains. Their pay was based on length of service and, before 2002, Muslim chaplains were not engaged on a salaried basis due to lack of demand. The average length of service for Christian chaplains was, therefore, longer than for Muslim chaplains, which meant all Muslim chaplains received less pay than their Christian counterparts.

Naeem, an imam, had worked as a prison chaplain since 2001 and claimed the pay scale indirectly discriminated against him.

Indirect discrimination occurs when a seemingly neutral provision, criterion or practice (PCP) disadvantages a group of people who share a protected characteristic (sex, race, age and so on). If a PCP disadvantages any individual within that group, this is indirect discrimination unless an employer can objectively justify it by showing the PCP is a proportionate means of achieving a legitimate aim.

These cases address:

• the extent to which claimants must prove the reason for the group disadvantage
• whether the reason for the disadvantage has to be something which is particular to the group's protected characteristic.

The matter eventually reached the Supreme Court which adjusted the legal test for indirect discrimination.

In the Essop case, the court found it did not matter why BME and older candidates were disadvantaged by the lower pass rate in the test. The disadvantage was enough to show indirect discrimination. In Naeem, this finding meant that there was no need to establish a direct link between being Muslim and the reason why the length of service in the pay scale disadvantaged Muslims.

So there was indirect discrimination in both cases, and it was then up to the employers involved to justify their use of the PCPs in order to avoid a finding of unlawful indirect discrimination. In the Naeem case, although there was indirect discrimination against Muslims, the Supreme Court was not willing to overturn the original employment tribunal’s finding that the pay scale being used for prison chaplains was justified.

Implications for employers

This decision is not particularly helpful for employers because, while it does clarify indirect discrimination law, it also makes it easier to bring an indirect discrimination claim. Claimants now don’t need to provide an explanation for their disadvantage or establish the reason why the treatment discriminated against them. The essential element is a causal link between the provision and suffering a disadvantage.

There is no requirement for a PCP to put every member of the group at a disadvantage (in the Essop case, for example, it did not matter that some BME and older candidates did pass the tests) but claimants must be able to show a causal link between the PCP and their own disadvantage, which should be the same as the disadvantage caused to the group as a whole.

It does not matter that the PCP is not intended to treat anyone less favourably, and this case decides that it does not matter why a particular PCP causes a disadvantage either. If any PCP creates a disadvantage, then it needs to be justified or removed. The pool for considering the impact of any PCP should be all workers who are affected by it.

Where complaints are raised about any PC, employers must give careful consideration to what is alleged. If a higher proportion of one group fail to pass an assessment, or are in a different place on a pay scale, this should be investigated promptly.

To avoid such claims, employers should monitor how all policies and practices, such as recruitment procedures, pay reviews, promotions and disciplinary processes, affect various groups. Equal opportunities policies and manager training will help avoid such claims too.

(unreported, [2016] UKSC 31 22 June 2016, SC)
Issue: limited leave to remain

These two cases were heard together in the Supreme Court and both concerned Nigerian women who came to the UK on migrant domestic worker visas. Foreign workers on this type of visa have limited leave to remain in the UK and must obtain government approval if they change employer. The two women escaped and brought employment tribunal claims for race discrimination over their treatment.

The Taiwo case involved a woman who worked as a domestic worker, nanny and housekeeper. She was treated in an appalling manner, claimed that her passport was taken from her, she was expected to be ‘on duty’ during most of her waking hours, was given insufficient food and was mocked, slapped and spat on.

However, did the treatment amount to direct or indirect race discrimination?

In the Onu case a domestic worker brought various claims against her former employer alleging that she was exploited and badly treated, being paid less than the national minimum wage, being required to work 84 hours per week and told that she would be arrested and imprisoned if she tried to run away.

Both race discrimination claims were unsuccessful in the lower courts on the basis that their former employers had mistreated them because of their immigration status, rather than their Nigerian nationality. (However both women were awarded significant sums by the employment tribunals for unpaid wages, the national minimum wage, holiday pay and failure to give rest breaks.)

In the Supreme Court (SC) the main issue was whether discrimination on the grounds of immigration status amounts to race discrimination on the grounds of nationality. Are immigration status and nationality so closely linked as to constitute race discrimination? The SC held that the unfavourable treatment of the employees did not constitute direct or indirect race discrimination. They were mistreated because of their vulnerability and dependence on their employers to stay in the UK; it had nothing to do with the fact that they were Nigerian. This meant there was no direct discrimination and as no provision, criterion or practice had been identified there was no indirect discrimination either. Although there could be indirect discrimination in relation to the exploitation of other migrant workers.

Implications for employers

• Bad treatment on the grounds of vulnerability for reasons including economic and immigration status does not constitute race discrimination. It may, however, give rise to contractual claims for breach of the implied duty of trust and confidence or other claims, even criminal prosecutions in some cases.

• Immigration status on its own is not a protected characteristic under the Equality Act 2010.

• Domestic workers may still claim for unfair dismissal if they have employee status and under the national minimum wage legislation and the Working Time regulations.

• The SC suggested that the Modern Slavery Act 2015 should be extended to employment tribunals to enable compensation for humiliation and distress experienced by such workers as the current law inadequately protects vulnerable migrant domestic workers.

• There is an issue concerning whether post-employment discrimination (for example ex-employers' wording of references) is covered by the Equality Act 2010 victimisation provisions. Based on another case it appears that the Equality Act 2010 can cover post-employment victimisation. (See Jessemey v Rowstock Ltd and another (unreported, [2014] EWCA Civ 185 26 February 2014, CA).
  

• As a matter of good practice, employers should take steps to ensure that no managers or other employees victimise employees either before, or after they have left, employment.

(unreported, Case C-83/14 16 July 2015, ECJ)
Issue: Race discrimination - by association

A Bulgarian electricity company placed all the electricity meters 6 to 7 metres high (instead of the usual 1.7 metres) in a district of a town where the residents were mainly of Roma ethnic origin. There had been cases of tampering with meters and unlawful connections to the electricity network which triggered the decision to raise their height.

A grocer in that district was unable to read her electricity meter as it was too high. She could not monitor her electricity use and check the alleged usage on her bills which were also too high.

She claimed indirect discrimination on grounds of ethnicity as although she was not of Roma origin herself, she suffered the same particular disadvantage.

The Bulgarian Administrative Court referred the following crucial issues to the European Court of Justice (ECJ):

• Did installing these meters higher than elsewhere in the town consititute direct or indirect race discrimination on the grounds of ethnic origin?
• Could a non-Roma bring a claim on these grounds by association?
• What does the expression ‘particular disadvantage’ mean within the definition of indirect discrimination?

The Advocate General recognised that the electricity company’s actions affected both people with the protected characteristic and those affected by association with them. The ECJ followed this opinion and held that those who suffer less favourable treatment because of a discriminatory measure can claim discrimination by association, even if they do not belong to the minority protected ethnic group.

Although the grocer was not of Roma origin she suffered a ‘particular disadvantage' and should be able to bring her claim of indirect discrimination. The words ‘particular disadvantage’ did not mean there has to be a serious case of inequality, but ‘particularly’ means that the practice puts far more persons of a given ethnic origin at a disadvantage. The case then returned to the Bulgarian court to decide if direct or indirect discrimination had taken place in this case.

Implications for employers

• This case did not concern an employer’s discrimination against an employee, but dealt with with discriminatory provision of services. However the same principles apply and change the interpretation of employment law in a significant way.
• The Equality Act 2010 may be challenged as the definition of indirect discrimination in Section 19 differs from EU law as it specifies that the individual complainant must have the same race or ethnicity as the disadvantaged group.
• Previously only direct discrimination could occur by association (for example, a heterosexual employee being sacked because she supported gay rights in the workplace).
• The case of Coleman v Attridge Law originally established that a person can claim direct discrimination if they have been treated less favourably as a result of being associated with a protected characteristic even if they do not share that protected characteristic.
• This case has extended that possibility into the area of indirect discrimination as it now appears that associative discrimination also applies to indirect discrimination.
• If there is a neutral provision, criterion or practice (PCP) that disadvantages people of a specific ethnic group, any person who suffers the same disadvantage may have a claim, regardless of their ethnicity.
• A ‘particular disadvantage’ does not require a serious or significant inequality, simply ‘far more’ people who possess the protected characteristic need to be disadvantaged.
• The case of Home Office v Essopheld that in indirect discrimination cases the PCP must disadvantage the group sharing the protected characteristic and that they must suffer the same disadvantage. This case may now be challenged as being in contradiction with EU law.
• Employment tribunals are obliged to interpret UK statutory provisions consistently with EU law so employees can now bring claims saying the Equality Act 2010 should be interpreted in line with this case which will effectively remove the requirement for claimant to have the relevant protected characteristic.
• The decision in this case may effectively circumvent hurdles previously faced in indirect discrimination claims. For example a male employee who is refused permission to work part time for childcare reasons would have previously struggled to bring a claim. This is because the disadvantaged group in indirect discrimination part-time working claims are women as they have a greater role in raising children. A male employee who is detrimentally affected could now pursue an associative claim.
• If this case is categorised as direct discrimination, then the implications would differ. UK law would not have to be interpreted differently because in direct discrimination claims the claimant does not need to share the characteristic in question and there is then no inconsistency between the UK and ECJ position.
• Employees may decide to plead both direct and indirect discrimination in the alternative.
• Employers should be careful not to reject discrimination claims on the basis that the employee does not share a protected characteristic.
• The provisions in the Equality Act 2010 dealing with religion or belief, sexual orientation, age and disability etc discrimination may evolve in a different way. The Government is unlikely to take steps to amend the legislation and the employment tribunals and Employment Appeal Tribunal will have to consider new claims in this area.

(unreported, ET/3400174/13 17 September 2015)
Issue: Race discrimination - Caste

The claimant was of the Adivasi caste, and was employed as a domestic servant. She originally worked for her employers in India and then in the UK. The employers were alleged to have considered her to be of lower status as belonging to a caste comparable to the untouchables and that this view was tainted by caste discrimination. The caste system is a historical concept emanating from the Hindu community in India, but also found in other parts of the world. The caste system separates people into groups based on birth, marriage and occupation.

The employee brought a claim for unfair dismissal, unpaid wages and race and caste discrimination. The employers applied to strike out the complaint of caste discrimination as there was no legislation expressly outlawing caste discrimination in the UK as yet.

The Employment Appeal Tribunal (EAT) held that the employee could bring a claim for caste discrimination. Although caste is not yet explicitly mentioned in the Equality Act 2010, it does fall under the ‘ethnic or national origins’ wording. The fact that the Government are considering legislating to specifically to include caste discrimination, but had not yet done so, was not determinative of the issue. The reasons behind the EAT decision include:

• The broad definition of 'race' in the Equality Act 2010 which includes 'colour; nationality; ethnic or national origin' was not a comprehensive and exhaustive list so that ethnic origin could include caste.
• Under the Human Rights Act 1998, the Equality Act 2010 has to be interpreted in a way that is compatible with the European Convention on Human Rights which prohibits discrimination on grounds of sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
• The EU Race Directive was intended to give effect to the International Convention for the Elimination of all forms of Racial Discrimination 1965 which prohibits discrimination on the grounds of descent.

The case then returned to the employment tribunal where the employee won on a wide range of claims including that:

• the employers had failed to pay the National Minimum Wage throughout the period of her employment
• she was unfairly dismissed
• she was the victim of unlawful harassment on the ground of her race and the victim of indirect religious discrimination, and
• the employer was in breach of the Working Time Regulations.

The employee was initially awarded £183,773.53 for unlawful deductions, with further compensation for discrimination and unfair dismissal etc to follow. The final judgment did not take the caste issue further as they decided that there was unjustified indirect religious discrimination anyway.

Implications for employers

• The EAT decision adds credence to the view that caste discrimination is protected under the Equality Act 2010.
• It appears that caste can be an aspect of race, despite the wording of the Equality Act 2010 not having been amended to date. Indeed, the judgment may pave the way for appeals on other decisions in which claims for caste discrimination have failed.
• No further clarification was given in the employment tribunal decision as the caste issue was eventually of no direct relevance to the tribunal decision, so the success of the employee in the case may support the view that the existing legislation is adequate. However, some groups will continue to press for caste discrimination to be expressly included in the legislation.
• The previous government was supposed to be legislating on caste discrimination before this case arose. In 2013 it announced that caste would be included within the definition of race in the Equality Act 2010 and that section 9 of that Act must be amended. However, it has announced a long consultation and legislative process extending until after the general election into summer 2015. It remains to be seen whether the Conservative government will adhere to the previous proposals or will perhaps rely upon this case and say that the existing protection is adequate.
• The EAT decision is preferred to an earlier employment tribunal case of Naveed v Aslam and others (unreported, ET/1603968/2011 26 November 2014, ET) which ruled that caste discrimination was not included under the Equality Act 2010 definition of race.
• Amended legislation may or may not emerge but this decision is an indication of the sort of protection that may be enjoyed by employees and employers should continue to enforce comprehensive equality and diversity policies and avoid caste discrimination in the same way as other forms of discrimination.
• As the Human Rights Act 1998 (HRA) is currently under review and is likely to be replaced by a British Bill of rights, future cases which concern whether the Equality Act 2010 is being interpreted in a way that is compatible with the European Convention on Human Rights may go back to the previous position of having to be heard in Strasbourg. Although the new legislation may reflect the HRA, albeit in a new format.

(unreported, [2014] UKSC 47 30 July 2014, SC)
Issue: Illegal working - race discrimination

A Nigerian national was employed unlawfully by a family as an au pair. She did not have permission to work in the UK and lied to the authorities in Nigeria to obtain a six-month visitor’s visa. Both the au pair and the family knew about the unlawful nature of the employment. When she was dismissed she brought claims for race discrimination, unfair dismissal, breach of contract and unpaid wages and holiday pay.

The Court of Appeal (CA) held that the au pair’s discrimination claim was inextricably linked with her illegal conduct. If she were allowed to pursue her discrimination claims and rely on her illegal actions, the CA would be condoning her illegality which it would not do.

However the Supreme Court disagreed and said there was not a sufficiently close connection between the au pair's illegal immigration and the unlawful discrimination, so she could bring her claim. The illegality concerned the employee’s ability to lawfully enter into a contract of employment and not the acts which took place during the employment. The illegality of the contract of employment was not enough to prevent the au pair from bringing a claim for unlawful discrimination.

Implications for employers

• Employers should ensure that they carry out the necessary checks that employees have the right to work in the relevant jurisdiction.
• Normal pre-employment screening involves checking proof of identity, right to work and residency in accordance with the UK Asylum and Nationality Act 2006 and the UK Border Agency Code of practice.
• A contract which is made for an illegal purpose or which will cause the parties to engage in an illegal activity is generally unenforceable, for example a contract to evade paying taxes or for illegal gambling or prostitution.
• An illegal contract or agreement is void or unenforceable as the courts will not enforce them on public-policy grounds.
• Tribunals and courts must not condone an employee’s illegal actions, even if this means dismissing their claims.
• The nature and extent of the illegality seems to have an effect. Therefore if the employee is actually relying on the illegal conduct as the basis of the claim, that will mean the claim is dismissed. However if there is not an inextricable link between the illegality and the basis of the claim then it is possible that the claim may proceed.
• If the employee is only on the very fringe of the illegality, for example by being aware of the employer’s illegal performance of the contract, but not participating in, then the claim may be allowed to proceed. (See Hall v Woolston Hall Leisure Ltd [2000] IRLR 578 CA).
• If the whole employment relationship is achieved by the employee’s dishonest and criminal conduct then the employee will not be allowed to pursue a contractual or discrimination claim. (See Vakante v Addey and Stanhope School [2004] All ER (D) 561 (Jul) CA).

​(unreported, [2014] Civ 279 13 March 2014, CA)
Issue: Migrant workers - race discrimination

A Nigerian woman worked as a domestic worker, nanny and housekeeper, under a migrant worker visa. She was treated in an appalling manner by the Respondents and claimed race discrimination against them. However, did the treatment amount to direct or indirect race discrimination? Whilst the tribunal proceedings were adjourned, her former employers sent the tribunal bundle to the UK Border Agency to try and get her immigration status overturned. The EAT held that the unfavourable treatment of the employee did not constitute direct or indirect race discrimination. She was mistreated partly because of her vulnerability, lack of English and dependence on her employer to stay in the UK. She had low socio-economic status and there was an imbalance of power in the relationship between her and the Respondents and these were reasons for her poor treatment as well. Therefore the cause of the unfavourable treatment was not just linked to her immigration status. There was no indirect discrimination either because no provision, criterion or practice had been identified.

Before it reached the EAT the case also previously highlighted a drafting error in the Equality Act 2010 on victimisation, which appears to limit victimisation claims to events taking place before or during the employment relationship. The judge therefore took what is known as a purposive approach to the legislation, by looking at the context in which the legislation was made and as a result interpreted it as covering victimisation during and post-employment.

The Court of Appeal decided on another point as well, ruling that employers who mistreat employees because they were vulnerable migrant workers did not discriminate on the grounds of race. For race discrimination to be made out it would be necessary to show that there was an exact correspondence between being a vulnerable migrant worker and having one of the protected characteristics. Since many migrant workers are not vulnerable and are not exploited, their treatment could not be said to amount to direct discrimination.

A final aspect to the case concerned costs which in this case had been borne by a Law Centre, funded in part by the Legal Services Commission. It was held that the previous Employment Tribunal rules had changed and a claim for costs was allowed, even though the costs had been incurred by a third party who was funding litigation and the litigant themselves had not incurred the cost.

Implications for employers

• Bad treatment on the grounds of vulnerability for reasons including economic and immigration status does not constitute race discrimination. It may, however, give rise to contractual claims for breach of the implied duty of trust and confidence or other claims, even criminal prosecutions in some cases.

• There is an issue concerning whether post-employment discrimination (for example ex-employers' wording of references) is covered by the Equality Act 2010 victimisation provisions.

• There is another case Jessemey v Rowstock Ltd and another(unreported, [2014] EWCA Civ 185 26 February 2014, CA) which has decided that the Equality Act 2010 covers post-employment victimisation. Therefore the law will need to be clarified. As a matter of best practice, employers should take steps to ensure that no managers or other employees victimise employees either before, or after they have left, employment.

• Funding by Law Centres, Equality Human Rights Commission and other third party funders will not prevent claims for costs.

​(unreported, [2014] Civ 279 13 March 2014, CA)
Issue: Race discrimination - post employment victimisation

A Nigerian born domestic worker, brought various claims against her former employer, alleging that she was exploited and badly treated, being paid less than the national minimum wage. She also claimed race discrimination under the Equality Act 2010 for victimisation which occurred some months after her employment ended. The former employer had allegedly telephoned the employee’s sister in Nigeria to say that she had sued her former employer and would suffer as a result.

However, the Employment Appeal Tribunal (EAT) and Court of Appeal held that there had been post-employment victimisation when the employer called the employee’s sister stating that she would suffer for bringing claims against him, concluding that:

• the employment tribunal was incorrect in deciding that there was no sustainable victimisation claim because there was no express reference to race discrimination,
• the Equality Act 2010 can cover post-employment victimisation and rejected the argument that the Act does not cover a victimisation claim in which the circumstances arise entirely after the relationship has ended.

Implications for employers

• It appears that the Equality Act 2010 can cover post-employment victimisation. (See also Jessemey v Rowstock Ltd and another (unreported, [2014] EWCA Civ 185 26 February 2014, CA).
• UK courts are supposed to interpret domestic anti-discrimination law in a way compatible with the EU Directives and this suggests the Equality Act 2010 should be interpreted to cover post-termination victimisation.
• Discrimination and harassment occurring after termination of the employment relationship were expressly covered by the Equality Act 2010, but victimisation was not and this needs to be amended.
• It appears that the Equality Act 2010 should cover post-employment victimisation and the Act should be amended to reflect this.
• As a matter of best practice, employers should avoid victimising ex-employees who have raised issues about discrimination.
• The UK has an error in discrimination law protection and some employers and the government are vulnerable to EU claims, as EU law prohibits post-employment victimisation.
• Until the law is rectified it is perhaps more sensible for employers to follow the Equality and Human Rights Commission’s Code of Practice which states that former workers are protected from victimisation.
• In the short term, other discrimination claims such as harassment can be made by ex-employees, so post-employment conduct which could be victimisation could be dressed up as a different discrimination claim.

​(unreported, [2013] EWCA Civ 22 29 January 2013, CA)
Issue: Race and sex discrimination - joint liability

A claimant, a trained barrister, was not appointed to the post of a Training and Development Co-ordinator and Race Discrimination Caseworker and said that this was due to sex and race discrimination. She personally claimed against members of the interview panel as well as the council and she also brought a victimisation claim based on earlier tribunal complaints.

The claimant was awarded total compensation in the region of £421,000. The EAT held that where more than one party is found to be guilty of discrimination, all the liable respondents should be jointly and severally liable for the entire award of compensation. This means that she could recover the full amount of loss from the employer or any of the individual respondents. This was instead of apportioning liability between the respondents, as often happens. The position would be different if there is a basis for distinguishing the damage caused by each party, but this is not generally the case.

Implications for employers

• This is good news for employers in some respects as the decision departs from apportioning awards between respondents.
• Usually most compensation is apportioned to the employer, on the basis that it is richer than individual employees.
• When employees bring a discrimination case it is not uncommon for them to claim against the employer, their line manager and or other employees as personally named respondents. This is always disruptive to the workplace as the employees involved feel anxious and financially exposed.
• Respondents can agree the issue of apportionment between themselves and in many cases the employer will agree to be responsible for the entire award to protect the existing employees who have been sued, and will therefore indemnify the personally named respondent employees.
• Split awards are still possible if a party specifically requests it and where the harm is caused by different acts of discrimination and can be separated out.
• If the same representative is acting for all the respondents including the employer and the managers etc, the question of apportionment will create a conflict of interest for the lawyer representing them.

[2012] EWCA Civ 1590
Issue: Race discrimination - time limits in bringing a claim

The Appellants in this case were engaged through agencies to work at Taylor Woodrow sites on the Docklands Light Railway. One day when they turned up for work there was no work available, an altercation arose and they were banned from any of Taylor Woodrow's sites in respect of the Docklands Light Railway which was later repeated when they tried to enter another site. Both claimed that the decision to ban them was race discrimination and they claimed this and unlawful deduction of wages.

The key issue initially before the Tribunal was whether they were entitled to pursue a claim more than 3 months from the imposition of the ban. The matter reached the Court of Appeal which held that the ban was a one-off, not a continuing act and that a claim had to be made within three months. The ban had been reiterated on 18 April 2008; this was the latest date on which time could have begun to run so the claims were out of time.

Implications for employers

• Employers who use agency workers and operate bans may in some circumstances face discrimination claims by the affected agency workers.

• Any claims need to be brought within three months of the ban being imposed at the start.

• Employers who ban workers should keep a careful record of why they did so to avoid allegations of discrimination.

• Employers who turn workers away as a result of a ban may commit a separate act which could initiate a new three-month time limit.

​[2012] UKSC 37, 26 June 2012

The Head of the Orthodontics Department (who was born in Sri Lanka) brought claims for sex and race discrimination alleging that she had been bullied and harassed by two managers.

She had previously complained to the Chief Executive comparing her treatment with that of two white male consultants, but after an investigation it was recommended that no action be taken. The claimant’s circumstances were not exactly the same as either comparator, but the employment tribunal found there was sufficient similarity and the difference in treatment justified the tribunal's inference of discrimination. It was then for the employer to prove it had not discriminated which it failed to do.

One of the key matters in the case concerned the burden of proof. The matter eventually reached the Supreme Court who declined to give further guidance, saying the approach set out in previous cases was clear. The burden of proof shifts to the employer where the claimant shows a prima facie case of discrimination.

Implications for employers

• Most of the implications in this case affect the way barristers argue a case on the employer’s behalf.
• In all discrimination cases the employee simply has to show an initial case that they suffered discrimination. It is then up to the employer to prove that they did not discriminate.
• Lawyers representing parties in discrimination cases should usually ask the tribunal to make specific findings of fact on the reason for the treatment in question.
• Once an employer satisfies an employment tribunal that it has acted for a particular reason that usually discharges the burden of showing that the discriminatory reason played no part in why the employer acted as it did.
• In discrimination cases an employment tribunal should hear all the evidence, including that of the employer before deciding whether or not the employer should bear the burden of proof.
• The employer can dispute a claimant's version of events and an employment tribunal must weigh up all the evidence before deciding whether or not those events did in fact take place.