Today’s outrage against objectivity and rational analysis is brought to you courtesy of the founder and Director of Civitas, an independent ‘think tank’. David G Green has written an article in the Telegraph giving a pithy critique of the Equality Act 2010.
David G Green is not a fan of the Equality Act, regarding it chiefly as a vehicle for avaricous lawyers and dishonest employees to rob innocent hard working entrepreneurs of what meagre earnings they have managed to scrape together. This is clearly something about which Mr Green feels deeply. So deeply in fact that he has not felt the slightest need to learn anything about what the Act actually says before committing his rage to paper. His anger comes straight from the heart, not the head.
Nor is his anger merely the fleeting mood of a moment. Mr Green has felt this way from the very beginning, as this article from the Telegraph back in 2009 shows (thanks @Tribunalwatch – well spotted). There is some really bizarre stuff in the 2009 article which seems to confuse the concept of the burden of proof in discrimination cases with the definition of indirect discrimination and prays in aid Kipling and the Marquess of Queensbury rules. But that was 2009 and we have moved on now. I am happy to say that there are fewer errors in the new article – although, to be fair, it is also quite a lot shorter.
Now you may gather that I am not entirely sympathetic to Mr Green’s point of view. I happen to think that it should be unlawful, for example, for an employer to refuse to employ black people, or deliberately pay women less than men for doing the same job (call me an incorrigible lefty if you like). It seems that Mr Green does not agree. Fair enough, that is his right. He is entitled to his opinion. What riles me is not the extreme position that he takes, but the fact that in both articles he grossly misrepresents the burden of proof in discrimination cases. I know that seems to be a rather technical and prosaic thing to get worked up about, but there it is. This is the sort of thing that bothers me.
Lets focus on yesterday’s article. What Mr Green says is this:
Worst of all, the burden of proof in discrimination cases has been reversed so that once an accusation has been made it is up to employers to prove their innocence. The requirement that citizens should have to prove their innocence was imposed by the EU, contrary to our longstanding heritage of protecting citizens against false accusations by requiring accusers to prove their case. Innocent until proven guilty used to be the watchword of our judicial system – but not now that the EU has insinuated itself into our legal processes
Reading that paragraph over again, I think what really makes the red mist descend is not so much that he is wrong, but the lofty and supercilious tone that he adopts in denouncing the way in which the EU has perverted the principles of British justice – it really hasn’t. I’m also annoyed because Mr Green has not completely made up the concept of a reverse burden of proof, he has merely misrepresented it. The danger is that in explaining where he has gone wrong, I could end up writing a rather boring essay and it could look to the casual observer as though I am just being picky and that Mr Green’s general point stands. I’m not and it doesn’t, but there is obviously a risk that it will look like that to the casual observer. Luckily if you have got this far, you aren’t that casual, so here goes.
We start with the problem. Nowadays, most employers are unlikely to wear their prejudices on their sleeve. If they are going to discriminate against someone, they are unlikely to say ‘sorry love, but this isn’t really a suitable job for women’ or ‘we don’t want your kind round here, we only employ white people’. Every so often a case like this comes along of course, but they are quite rare. In general, direct evidence of discrimination is hard to come by.
So how can we spot discrimination when it does happen? It’s all about drawing inferences from the facts that have been proved. Even before the EU began to think about a reverse burden of proof, the UK courts had all but come up with the concept on their own.
The classic explanation comes from the case of King v Great Britain China Centre  IRLR 513. Here the Court of Appeal distilled some general principles from the case law and said that where someone had been treated less favourably than someone of a different race (for example), then that might ‘point to the possibility’ of race discrimination. Lord Justice Neil then said:
In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory, it will be legitimate for the tribunal to infer that the discrimination was on racial grounds.
In other words, where facts are proved that indicate that discrimination may have taken place, the tribunal can look for an explanation from the employer of the difference in treatment. If that explanation is not believed by the tribunal, then the tribunal can infer that discrimination has taken place. From 1991 onwards, that was the standard way in which the burden of proof was dealt with in the UK. In formal legal terms the burden did not shift, but in reality an employer had to be able to demonstrate a non-discriminatory reason for a difference in treatment in order to defeat a claim.
Its worth stressing that this was nothing to do with any directive or ruling from the EU. Indeed the principle was developed in race discrimination cases which were not even covered by EU law at that time.
A shifting burden
The formal shift in the burden of proof came about as a result of the burden of proof directive in 1997, which has now been replaced by the Equal Treatment Framework Directive which says this:
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. (Article 10)
As a result,we do now have a shifting burden of proof under the Equality Act (S.136), but the key requirement is that the claimant must first of all prove facts ‘from which the court could decide, in the absence of any other explanation’ that discrimination has taken place. It is only if those facts are proved that that the burden shifts to the employer to prove that there was no discrimination. In its essentials, the process is not so very different from that described in King back in 1991.
If anything, the bar has in practice been raised somewhat, with the Court of Appeal in Madarassy v Nomura International plc stressing that the claimant must prove ‘something more’ than a mere difference in race (for example) and a difference in treatment. Just what that ‘something more’ needs to be is not completely clear and we are currently getting quite a lot of tedious case law struggling with the precise mechanism by which the burden of proof passes to the employer. On the whole, employers seem to be getting the best of it, but that is a different story. The fundamental point is that when Mr Green says
once an accusation has been made it is up to employers to prove their innocence
he is categorically completely and unarguably wrong. He was wrong in 2009 and he is wrong today. A mere accusation simply does not place any burden of proof on the employer, the claimant has to do much, much more than just make an accusation. All employment lawyers know that Mr Green is wrong and could explain to him where his mistake lies. They could show him the case law and highlight the key passages for him so that he could understand just how wrong he is.
I wonder if he would be grateful for that?
Because the thing about this sort of article is that the author – and the paper indulging him – are not interested in getting the facts right. Mr Green is a clever man and I’m sure he could understand this subject if he chose to. It seems almost as if he wants the law to be as unreasonable and un-British as possible, the better to denounce it. Any actual understanding of the subject would simply get in the way of his rhetoric.
Business deserves better
What makes me livid about this sort of argument is that ignorance of employment law is bad for business and Mr Green’s article practically revels in its ignorance; he luxuriates in it. Clearly he enjoys the fantasy he has dreamt up of the horrid Europeans forcing good old Blighty to sacrifice its ancient liberties. However, there is a danger that employers and business owners could read Mr Green’s article and assume that he knows what he is talking about – and that’s a depressing prospect. They will think that they will indeed be forced to prove their innocence whenever any accusation of discrimination is made against them, irrespective of its merits. That could lead them to settle cases that shouldn’t settle, or avoid making decisions that their business needs them to make because of their fear of a discrimination claim. Mr Green and the Telegraph would no doubt consider themselves to be on the side of British business, but by promoting a false view of employment law they do British business a great disservice.
I know that there is a right-wing push on at the moment to weaken employment protection. I’m not too dogmatic about that and keen to have a rational debate about the issues. But can we at least start from a position of accurately assessing what the law currently is before we start hacking away at it?