Burden of proof

06 November 2017

The issue of the burden of proof was also to the fore in Kumar v DHL Services Ltd. Mr Kumar applied for a managerial post with the employer but was unsuccessful.

He suspected that he had been subjected to discrimination when he was given feedback on his interview which suggested that he was not as assertive as the role demanded and that his previous experience meant that the new role would be a ‘step down’ for him. He felt that this was not a fair reflection of what had happened at the interview and that it indicated some other motivation behind the decision not to recruit him.

On hearing the case the tribunal decided – with the agreement of the parties – to act on the assumption that the burden of proof fell on the employer and move straight to the question of the ‘reason why’ Mr Kumar’s application was unsuccessful. The Tribunal made a number of criticisms of the recruitment process but accepted the evidence of the manager as to why she had felt that Mr Kumar was not suitable for the position and dismissed his claim.

On appeal Mr Kumar argued that more weight should have been given to evidence showing a lack of diversity in the employer’s management structure and a lack of equal opportunities training for those taking part in recruitment exercises. There had also been no clear selection criteria set out for the job in question and the notes kept in relation to the interviews had been inadequate. The EAT accepted that these were all relevant circumstances for the Tribunal to consider, but they did nothing more than point to the possibility of discrimination taking place. The tribunal had accepted that possibility by considering the case on the basis that it was for the employer to prove that there was no discrimination. What mattered was the actual reason for the rejection of his application and the tribunal had carefully tested and then accepted the evidence of the manager as to why Mr Kumar had not been offered the role. By accepting that evidence, the tribunal had found that race did not form part of the employer’s reasoning and there was no wider obligation to show that the recruitment process was a fair or reasonable one. The appeal was dismissed.

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