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This case was a claim for direct discrimination, indirect discrimination and unfair dismissal in the Employment Tribunal (among others). The issues that will be focused on in this article are direct discrimination and the burden of proof.

The facts in Market One Europe LLP v Rojas

Ms Rojas (“the Claimant”) commenced employment with Market One Europe LLP (“the Respondent”) and worked at home on a part-time basis. She initially lived in Spain but after having her first child moved to Milton Keynes and then to London. Upon her move to London the Respondent informed her that they wanted her to work in the London office. The Claimant explained that it would not be cost effective to do so because of the cost of childcare. A male comparator, working in the Netherlands, had not been asked to move back to an office environment. The Claimant was later informed that the contract she was working on was coming to an end and that there was no other work available for her at the moment. The Claimant was made redundant on 21 November 2009 and submitted claims to the Employment Tribunal relating to indirect discrimination, direct discrimination and unfair dismissal, among others.

The Claimant succeeded in her claims for indirect sex discrimination, direct sex discrimination and unfair dismissal at the Employment Tribunal. The Respondent appealed on a number of grounds against the findings, including the fact that the Claimant had not adduced such evidence from which discrimination could be inferred without a satisfactory explanation from the employer.

The law relating to direct discrimination and the burden of proof

This case was pleaded under the “old” legislation, the Sex Discrimination Act 1975. However, the law relating to direct discrimination under the “new” legislation, the Equality Act 2010, is substantially the same. The analysis of direct discrimination and the burden of proof in direct discrimination cases will therefore utilise the “new” legislation.

Under the Equality Act 2010 in order to demonstrate direct sex discrimination the Claimant must show, on the balance of probabilities, that she (or he) has been treated less favourably than other comparable workers because of their gender. The Claimant must show sufficient evidence that it is proper to draw an inference of discrimination on the facts before the Employment Tribunal. It is then for the Respondent to put forward a good explanation for the treatment afforded (i.e. that it was not discriminatory).

However, as this case demonstrates, the law relating to the burden of proof is slightly more complicated than that. It is not sufficient that an employer acts unreasonably towards the employee – this does not demonstrate less favourable treatment. The issue is one, at its core, of causation. What caused the employer to act that way towards the worker? Was it their skin colour, sex or race, or was it another, more benign reason? The Employment Tribunal must look at the primary facts before it and make a reasonable conclusion, considering all explanations for the treatment, and giving sufficient and clear reasons for its decision.

The Employment Appeal Tribunal’s judgment in Market One Europe LLP v Rojas

The Employment Appeal Tribunal allowed the Respondent’s appeal against the finding of direct discrimination. The comparator used by the Claimant was, it contended, not sufficiently justified to the Employment Tribunal and there was not sufficient evidence before the Employment Tribunal for it to conclude that men and women were treated differently. The Claimant had, in other words, failed to adduce sufficient evidence to allow the burden of proof to shift to the Respondent. Further, the Employment Tribunal had not had sufficient regard to the explanations of the Respondent regarding the treatment – the Employment Appeal Tribunal considered the Respondent’s argument a good one.

Our specialist employment lawyers’ thoughts on Market One Europe LLP v Rojas

As stated above, the critical issues in this case (the direct discrimination element, anyway) were that of causation and the burden of proof. The Claimant failed to show that the reason for the treatment afforded to her related to her sex, as opposed to some other non-discriminatory reason. The reason she wasn’t able to show causation was a lack of (substantive) evidence supporting her claim. This therefore adversely affected her ability to shift the burden of proof on to the Respondent. Evidence, as always, is king.

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