The provision of the Equality Act 2010 reversing the burden of proof in discrimination claims (section 136) means that if a claimant can show facts which could amount to discrimination, then a tribunal must find for him or her, unless the employer can show that there was another explanation for those facts.
In Dziedziak v Future Electronics Ltd an employee selected for redundancy sought to rely on this reversal of the burden of proof, claiming, amongst other things, that the use of attendance as part of the selection criteria was indirectly discriminatory, because her attendance record as a single parent with responsibility for a sick child was poor. She failed in this part of her claim, because the tribunal found as a matter of fact that her lateness had not had an impact on her selection. Because she had not established that fact, the reversal of the burden of proof was not triggered, and her claim failed.
Although unsuccessful in this part of her claim, Ms Dziedziak did succeed in an unfair dismissal claim on the ground that she had not been adequately consulted (although she received no compensation because it was considered that she would in any event have been made redundant) and in a race discrimination claim. The latter arose because she, alone of all the employees, was instructed not to speak her mother tongue (Polish) in the office; the Employment Appeal Tribunal confirmed that this was a detriment to her, and in the absence of any explanation by the employer, the allegation was found to have been proved.