In the 2007 case Madarassy v Nomura International the Court of Appeal remarked that:
"The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination."
Birmingham City Council v Millwood is an illustration of one way of establishing the “something more” needed to reverse the burden of proof where a difference in treatment has been shown.
A black employee was found to have been treated less favourably than an Asian employee. They were in comparable circumstances – both were family support workers but had originally been teaching assistants. The Asian employee was given a permanent contract while the black worker was not. Various explanations were put forward. These included suggestions that there had been administration problems, that funding for the post of family support worker was limited, and that the Asian worker had asked for a permanent contract and had relevant experience. These were not untrue; but they were not enough of an explanation. This, said the Employment Appeal Tribunal was the “something more” needed to shift the burden of proof.
Mr Justice Langstaff (President of the Employment Appeal Tribunal) set out the reasoning applied as follows:
It seems to us that two issues arise for our determination. The first is whether as a matter of law Mr Beever is correct in his submission that whatever the explanations advanced for the treatment of the Claimant and however inadequate or wrong they might be, the Tribunal could not simply upon the basis of the difference in race and status coupled with the inadequacies of the excuses proffered regard the burden of proof as shifting. If he is right in that submission, then the appeal must succeed and the claim must be dismissed. If he is wrong in that submission, we have to ask whether the Tribunal by asking for "something more" identified that which Mr Swanson submits they did: that there had here been a number of rejected explanations put forward for consideration. We approach this question by remembering that the purpose of the provisions is to identify a proper claim of discrimination, recognising that it is highly unlikely in the real world that there will be any clear evidence that that has occurred. The inference will have to be drawn if a claim for discrimination is to succeed at all. Though a difference in race and a difference in treatment to the disadvantage of the complainant is insufficient and something more is required, Mr Beever was prepared to accept that where as part of the history that the Tribunal was examining an employer had at the time of the alleged discriminatory treatment given an explanation for it which a Tribunal was later to conclude was a lie, that might, coupled with the difference in race and treatment, justify a reversal of the burden of proof. We agree.
What is more problematic is the situation where there is an explanation that is not necessarily found expressly to be a lie but which is rejected as opposed to being one that is simply not regarded as sufficiently adequate. Realistically, it seems to us that, in any case in which an employer justifies treatment that has a differential effect as between a person of one race and a person or persons of another by putting forward a number of inconsistent explanations which are disbelieved (as opposed to not being fully accepted), there is sufficient to justify a shift of the burden of proof. Exactly that evidential position would have arisen in the days in which King v Great Britain-China Centre [1992] ICR 516 was the leading authority in relation to the approach a Tribunal should take to claims of discrimination. Although a Tribunal must by statute ignore whether there is any adequate explanation in stage one of its logical analysis of the facts, that does not mean, in our view, to say that it can and should ignore an explanation that is frankly inadequate and in particular one that is disbelieved.
Mr Beever submitted, with some force, that if an explanation was simply inadequate, then that on its own would not, coupled with the difference in status and treatment, be sufficient to shift the burden of proof. We do not need to decide for present purposes whether he is right in that submission, because it is not this case; nor are we helped by his reference to the facts of Mwitta, not least because…the Employment Tribunal did not disbelieve a witness as to his reasons but merely thought that another conclusion would have been “more logical”. To prefer one conclusion rather than another is not, as it seems to us, the same as rejecting a reason put as being simply wrong. In essence, the Tribunal in the present case appeared not to believe at least two of the explanations that were being advanced to it, and there were, we accept from what Mr Swanson has said, some three inconsistent explanations put forward for the difference in treatment that constituted the alleged discriminatory conduct.
Accordingly, we cannot say that the error in approach [of the Tribunal] would necessarily have the conclusion here that the Respondents would inevitably succeed…The Tribunal said that it had looked during the first stage of its analysis at the explanation for the treatment given by the Respondents. When those words were compared with the quote from Igen in the Judgment of Mummery LJ in Madarassy, Mr Swanson was prepared to concede that there might be an error of approach. He urged us to consider, however, that perhaps what the Tribunal was saying was that it had regard to the inadequate or rejected explanations given by the Respondents that, as we have indicated, may in proper circumstances and upon a proper evaluation of what inferences to draw, would be sufficient for a Tribunal to regard the burden of proof as having shifted.
We turn, then, to the second of the two points that we have regarded as important: did the Tribunal here actually identify what it regarded as “something more”? Viewed broadly, as an Employment Tribunal Judgment generally should be, the pattern of the paragraphs is compelling toward a conclusion that the Tribunal did no more than identify a difference in race and a difference in treatment and think…that it required an explanation capable of satisfying the burden of proof from the employer as to that. We are persuaded that that is the basic pattern of these paragraphs, as Mr Beever has submitted. However, taking the Judgment as a whole, we also ask what the purpose is…of making reference in context to the explanations that were advanced. We can see that they may simply be historical. The Tribunal does not say words to the effect of, "this is the ‘something more’". What the Tribunal says is insufficiently clear, as it seems to us, to be sure that by the words it used, particularly given the general format of this part of its decision, that it had in mind that a reason additional to difference in status and treatment for concluding it could have found there was discrimination was the fact that several inconsistent and rejected explanations had been put forward for the treatment, the inference then being that the real reason was something that the employer would wish to keep hidden, and that in the circumstances would lead naturally to an inference that it might be race.
…We have come to the conclusion that the Tribunal, broadly, had identified that the Claimant was treated badly by comparison with someone of a different race and that explanations had been put forward for her treatment which were not accepted. The question of what inference to draw from those facts is one for the Tribunal. It seems to us that the Tribunal may not properly have addressed its mind to the law; hence there may be an error….It might have meant to say, but did not clearly do so, that it was the inadequacies of explanations that it rejected that made the difference, but there is no analysis of that nor full explanation of why that might be so and that that was what the Tribunal was doing.
In general, it is not easy for employees to identify evidence of discrimination, and along with the threatened questionnaire procedure (although this is shortly to be withdrawn), the potential to reverse the burden of proof has developed to uncover hidden discrimination. This case is a reminder that an employee cannot hold an employer who has good reasons for its actions to ransom by making a bare assertion that the treatment they have received is discriminatory.
