Evidencing unlawful discrimination can be difficult, usually because there is often no way to evidence why a person has acted in the way that they have. The law recognises this difficulty and reflects it in its rules relating to the burden of proof i.e. who needs to prove what in order for claims to proceed. Where an allegation of unlawful discrimination is made, it is the claimant's responsibility to provide sufficient evidence from which an inference of unlawful discrimination can be made by the Tribunal. It is then for the respondent to show that the reason for the treatment was not discriminatory.
In The Chief Constable of Kent Constabulary v. Bowler, PC Bowler brought claims of race discrimination and victimisation against the Chief Constable of Kent Constabulary (Kent Police), complaining about the way in which his grievance was handled by Kent Police. Mr Bowler, of Asian descent, had served as a police officer for 25 years and his grievance stemmed from his attempts to gain promotion. The Employment Tribunal held that Mr Bowler's grievance was dealt with in an incompetent manner and that the investigator displayed a lackadaisical approach. As a result, the Tribunal found that there was a case of less favourable treatment on the grounds of race. Kent Police appealed on the grounds that the failings highlighted by the Tribunal were not sufficient to transfer the burden of proof to it as the employer.
The EAT had to determine whether there was an error in law in how the Employment Tribunal had approached the complaints and whether, as disputed by Kent Police, the correct burden of proof test had been applied.
The court's decision
Unlawful direct discrimination can occur when an individual makes stereotypical assumptions about another; however, there must be some evidence that allows the Tribunal to infer that an alleged discriminator held a stereotypical assumption which affected the way they treated the complainant. Here, the EAT looked at the evidence that was before the Tribunal in relation to the failure to investigate Mr Bowler's grievance. The Tribunal found that the individual who heard the grievance had not previously heard a grievance, nor had he had any training in dealing with grievances. Instead, the individual did not take the case seriously and asked the relevant officers if they were "racist", based on the Oxford Dictionary definition of racism.
As a result, in this case, the EAT held that the Tribunal failed to establish that the individual who heard the grievance had a stereotypical assumption which led him to treat Mr Bowler less favourably. Instead, the EAT found that this was an "incompetently handled grievance" which was handled with a "lackadaisical approach". Though it was critical of the apathetic and incompetent approach in handling Mr Bowler's grievance, it found this did not, in itself, amount to discrimination. While it recognised that this was unreasonable, it could not agree with the Employment Tribunal's finding that this constituted less favourable treatment.
The Tribunal's decision was an error in law because there was no obvious or logical link between a careless grievance process and discrimination in these circumstances. Therefore, the EAT overturned the Employment Tribunal's finding of unlawful race discrimination and remitted the case back to the Tribunal for reconsideration.
This case confirms that a poorly handled grievance will not, in itself, indicate that an individual has been discriminated against. A claimant must present a set of facts giving rise to an inference that there was discrimination before the burden of proof can shift on to the respondent to qualify its actions and show that it did not act in a certain way as a result of a protected characteristic, but that it was for another non-discriminatory reason.