Burden of proof

EB v BA [2006] EWCA Civ 132; SJ 3 March

The claimant alleged that she had been discriminated against in the allocation of work contrary to s2A of the Sex Discrimination Act 1975 following her gender reassignment and that because of that discrimination her workload had fallen, resulting in her being chosen for redundancy. The claimant transitioned, meaning that she started living full-time in a female role, including at work, in April 2000. In November 2000 she underwent gender reassignment surgery. Although the employment tribunal found that the burden of proof had shifted to the employer from the date of the claimant’s gender reassignment surgery, it did not in fact place the burden of proof on the employer, and in any event the burden had shifted in April 2000 when the claimant started living full-time in a female role. In the whole period following transition, the claimant had been allocated only one new client. Had the employment tribunal found that the burden of proof shifted to the employer in respect of the periods starting in May 2000, the employer would have had to justify the fact that the claimant worked on only three out of what appeared to be over 200 projects in the period leading to her dismissal. That should have been compared with the immediately proceeding period during which the claimant had been promoted to principal and had had a very high billability rate. The employment tribunal had over looked the fact that the burden of proof had been transferred to the employer. The proper course was to remit the complaint of discrimination to a new tribunal for a fresh hearing. The issues of discrimination and redundancy were so linked on the facts of the case that the issue of redundancy was also remitted.