[2025] UKUT 048 (AAC)

The appellants submit that the Tribunal erred in law because it failed to direct itself as to the terms of section 136 and the effect of the shifting burden of proof. Further, the appellants submit that this was a case in which, given the expert evidence, it would have been perverse for the Tribunal to have reached any conclusion other than that the appellants had satisfied the primary burden of proof on them so that the burden of proof in fact shifted to the respondent to prove that there was no causal connection to B’s disability.

The respondent submits that the Tribunal did not need to consider the shifting burden of proof because the Tribunal had concluded on the evidence that the respondent did not treat B less favourably because of something arising in consequence of her disability.

In my judgment, the Tribunal erred in law as to the burden of proof. Its first error was that it misdirected itself as to the law because it failed to direct itself to section 136 and the shifting burden of proof. In this respect, I note that the Tribunal will have ‘taken its cue’ from the issues that were identified in the case management order by a different judge some months in advance of the hearing, which also did not make reference to the shifting burden of proof. However, it was the obligation of the panel at the hearing to get the law right, whatever the contents of the previous case management order.

Contrary to the respondent’s submission, this is not a case in which the burden of proof became immaterial because the Tribunal was able to make positive factual findings one way or the other. The Tribunal three times in its decision noted some doubt or lacuna about the evidence, but apparently relied on the burden of proof to resolve that doubt against the appellants: see [26], [40] and [42].

Further, the Tribunal’s errors in Ground 1 in leaving out of account the expert evidence also place this case firmly in the category of case identified by HHJ Tayler in Field v Pye where “there is significant evidence that could establish that there has been discrimination” that “cannot be ignored”. As HHJ Tayler explained in Field v Pye, if there is such significant evidence, then if the Tribunal wishes to proceed straight to the second stage of the analysis, it will either need to place the burden of proof on the respondent or it will need to explain why it does not consider the significant evidence was in fact sufficient to discharge the primary burden of proof. This Tribunal has done neither of those things.

While it is true that in some cases the burden of proof has little role to play, in cases where an element of liability is in issue that is not readily proved by direct evidence, the burden of proof assumes greater importance. The rationale for introducing the shifting burden of proof in discrimination claims was, as the case law I have set out above explains, because of the well-recognised difficulty for a claimant in proving that a person’s actions were materially, but probably unconsciously, influenced by a protected characteristic. In section 15 claims the difficulty in proving something of which there may not be direct evidence may also arise at the stage of having to identify what the ‘something’ was that was the real reason for the treatment, but it also often arises at the stage of considering whether there is a causal connection between the ‘something’ and the disability.

In cases such as this, therefore, the burden of proof may be important. If the claimant adduces evidence from which it could be concluded (on the balance of probabilities) that there was a causal link between the disability and the ‘something’ (as is likely to be the case if, as here, there is expert evidence that the particular disability often manifests itself in the type of behaviour in question), then the burden of proof shifts to the respondent to prove that there was no such connection in the particular circumstances of the case. Or, to put it in Igen v Wong terms, the burden passes to the respondent to show that the treatment was “in no sense whatsoever” because of the protected characteristic as there, despite initial appearances, no material causal connection in the particular case.