A recent House of Lords case has highlighted the problems faced by tribunals considering whether discrimination on the grounds of race has taken place in the workplace.

The burden of proof in such cases lies with the claimant, who often finds direct evidence of discriminatory conduct difficult to find. This case has set out guidance as to the circumstances when tribunals can infer discriminatory conduct.

Mr Zafar, a social worker, brought proceedings against his former employer on the grounds that his dismissal was racially discriminatory. The case raised two important questions.

First, where an employee was found to have acted unreasonably in dismissing an employee, was an industrial tribunal justified in concluding that the employee had been treated "less favourably" than other employees? The House of Lords held that, although the employer may not be a reasonable employer, he may treat all employees equally unsatisfactorily. Therefore, it would not automatically follow that the employee in question had been treated "less favourably".

Second, where there was evidence of less favourable treatment, the House of Lords considered whether it was correct to infer that such treatment was racially based. The Court held that, when considering such an issue, a tribunal should first look to the employer for an explanation of the difference in treatment between races. In the absence of an explanation or if the tribunal found the employer's explanation unsatisfactory, it would then be correct for the tribunal to make such inferences. The important point to note is that a tribunal always retains a discretion in coming to such a decision, and should not make such inferences automatically.

Michael Boyd is a partner at commercial lawyers Pinsent Curtis

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