The Burden of Proof In Discrimination cases. Mary Stacey Employment Judge, England & Wales

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1 The Burden of Proof In Discrimination cases Mary Stacey Employment Judge, England & Wales

2 Contents The purpose of the burden of proof provisions in the anti-discrimination Directives Detailed provisions CJEU case law to date Application of the principles

3 Purpose of the burden of proof Discrimination across all the protected, or suspect, characteristics remains entrenched across EU notwithstanding the importance of equality of treatment as a fundamental principle in both EU law and policy. There are particular difficulties in proving discrimination for claimants who must prove the reason for the treatment complained of or its discriminatory effect and The employer or service provider will usually hold the information necessary to prove or disprove the claim.

4 Broad Principle For the Claimant to prove his/her case But when facts are established by the Claimant from which it may be presumed that there has been direct or indirect discrimination The burden of proof shifts and the Respondent must prove that there has been no discrimination. As part of the principle of effective judicial protection for community rights.

5 Uniform wording across the Directives (1) Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment. Art 8(1) 2000/43; Art 10(1) 2000/78 & 2006/54 19(1).

6 Uniform wording across the Directives (2) Paragraph 1 shall not prevent Members states from introducing rules of evidence, which are more favourable to plaintiffs. Paragraph 1 shall not apply to criminal procedures. Member States need not apply paragraph 1 to proceedings in which it is for the court or competent body to investigate the facts of the case.

7 Explanation The adoption of rules on the burden of proof plays a significant role in ensuring that the principle of equal treatment can be effectively enforced. As the Court of Justice has held, provision should therefore be made to ensure that the burden of proof shifts to the respondent when there is a prima facie case of discrimination, except in relation to proceedings in which it is for the court or other competent body to investigate the facts.

8 Explanation continued It is however necessary to clarify that the appreciation of the facts from which it may be presumed that there has been direct or indirect discrimination remains a matter for the relevant national body in accordance with national law or practice. Further it is for the Member States to introduce, at any appropriate stage of the proceedings, rules of evidence which are more favourable to plaintiffs. Recital /54

9 History The wording of the Directives derives from early CJEU case law in the context of equal pay for men and women such as Danfoss [1989] ECR 3199 and Enderby [1993] ECR I-5535, (see Nikoloudi C-196/02) Specific Burden of Proof Directive intriduced1997/80, now replaced within the 3 Equality Directives, but with the same meaning. (para 40 Meister)

10 Example A claimant is unsuccessful in a job interview and is told that it is because she was not as good as the other candidates. How does she know if the reason for her non-selection was for a prohibited characteristic? Under a pay and grading scheme women receive less pay than men. How do the women claimants know if the pay difference is due to sex?

11 Stages to the test Claimant establishes facts From which it may be presumed there is direct or indirect discrimination Then burden shifts to the respondent

12 Kelly v National University of Ireland C-104/10 Complaint of direct sex discrimination in access to vocational training. Unsuccessful male candidate sought unredacted application forms of the other applicants Disclosure had been refused by national court, but some voluntary disclosure offered

13 Kelly v National University of Ireland C-104/10 (2) CJEU held that claimant s belief did not specifically entitle him to the information of the other applicant s qualifications etc in order to establish the facts (para 38) BUT It cannot be ruled out that a refusal of disclosure by the defendant, in the context of establishing the facts, could risk compromising the achievement of the objective pursued by that directive and thus depriving, in particular, Art 4(1) thereof [8(1), 10(1) & 19(1) of the current directives] of its effectiveness. (para 39)

14 Kelly v National University of Ireland C-104/10 (3) Kelly s belief not sufficient on the facts before the court to entitle him to the specific information pursuant to the burden of proof provisions. Confidentiality rights considered. Where an applicant for vocational training can rely on the [burden of proof provisions] in order to obtain access to the information held by the course provider on the qualifications of the other applicants for the course in question, that entitlement to access can be affected by rules of EU law relating to confidentiality. (para 56)

15 Kelly v National University of Ireland C-104/10 (4) Practical considerations: When should an inference be drawn from nondisclosure that would assist establishing the case? Confidentiality concerns may be met by redaction and anonymity in appropriate circumstances and the limit to the use to which information received in the course of proceedings may be used outside court procedures.

16 Meister v Speech Design Carrier Systems GmbH C-415/10 Claim for age, sex and ethnic origin direct discrimination by an unsuccessful job applicant for an experienced software developer position. Claim rejected at first instance by the Labour Court

17 Meister v Speech Design Carrier Systems GmbH C-415/10 (2) Questions referred to CJEU: Is it sufficient to show the job requirements are met to entitle the claimant to the information about other applicants & basis for appointment? If the answer to question 1 is yes, and the respondent fails to disclose the information, does that fact give rise to a presumption of discrimination?

18 Meister v Speech Design Carrier Systems GmbH C-415/10 (3) CJEU reiterated that it is for national courts to assess the facts from which it may be presumed that there has been direct or indirect discrimination It is for the referring court to ensure that the refusal of disclosure is not liable to compromise the achievement of the objectives of the equality directives (para 42)

19 Meister v Speech Design Carrier Systems GmbH C-415/10 (4) In determining the question the national court must, in particular, take account of all the circumstances of the main proceedings, in order to determine whether there is sufficient evidence for a finding that the facts from which it may be presumed that there has been such discrimination have been established. (para 42)

20 CJEU cases pending (1) ACCEPT v Consiliul National pentru Combaterea Discriminarii a pending reference to the CJEU on whether apparently overtly homophobic remarks establish facts from which it may be presumed there has been sexual orientation direct discrimination.

21 CJEU cases pending (2) Valeri Hariev Belov v Elektro Balgarai C-394/11 Indirect discrimination complaint. AG Kokott opinion delivered on The language of Art 8(1) only requires a presumption, not a definite conclusion. Any stricter interpretation would jeopardise the practical effectiveness of the burden of proof provisions making them practically redundant. The provisions maintain a fair balance between the parties by strengthening the position of the potential victim, but merely modifying, not removing the burden of proof from the presumed victim.

22 Application of the principles: direct discrimination (1) Establish the facts from the claimant: A difference in treatment A difference in protected characteristic, eg race Any like for like actual or hypothetical comparisons Statistical evidence All the circumstances both background and foreground

23 Application of the principles: direct discrimination (2) May discrimination be presumed? Remembering discrimination is likely to be covert or hidden Discriminators will not usually advertise their prejudices And any refusal by the respondent to provide information Inferences may be drawn Difference in treatment and difference in protected characteristic alone is not usually sufficient.

24 Application of the principles: direct discrimination (3) If the burden of proof shifts, the respondent must prove to the civil standard of proof, with cogent evidence, that there was no discrimination whatsoever in the reason for the treatment. Where there are a combination of reasons any taint of discrimination will render the action unlawful.

25 Application of the principles: indirect discrimination (1) For the claimant to establish a provision, criteria or practice, Which places persons of particular group (eg religion) at a particular disadvantage. If so, burden shifts to the respondent

26 Application of the principles: indirect discrimination (2) Respondent discharges burden of proof by: Objective justification by proving A legitimate aim and Proportionate means applied to achieve the legitimate aim.

27 Application of the principles: indirect discrimination (3) Bilka-Kaufhaus GmbH v Weber von Hartz (170/84 CJEU) Do the means selected to achieve the chosen aim correspond to a real need? Are they appropriate to achieve that aim? Are they necessary in order to achieve that end?

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