Sex Discrimination – Burden of Proof

Andrew Masters

Partner & Head of Employment

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May 4, 2017

Categories Employment Law Updates

Talbot v Costain Oil Gas & Process Ltd and others

Proving discrimination can be a complicated business. Direct evidence of discrimination is hard to come by because perpetrators are unlikely to admit their prejudices openly. An employment tribunal must, therefore, be careful to look at all of the surrounding circumstances to see what inferences can be drawn from an employer’s behaviour. Where the facts found could give rise to an inference of discrimination, the burden of proof will be on the employer to prove that there is an innocent explanation for the treatment complained of.

In Talbot v Costain Oil Gas & Process Ltd and others, Ms Talbot was an engineer supplied by an agency to work in a male dominated environment. She had her contract terminated after 12 weeks and was escorted off the premises. An employment tribunal found that the reason for this was that she was not doing her work in the way in which her manager wanted – and rejected her claims of sex discrimination.

The EAT found, however, that the tribunal had been too quick to dismiss her claims. She had alleged sex discrimination in relation to a large number of incidents and in respect of each one the tribunal had found that there was insufficient evidence to show that discrimination lay behind the treatment.

What the tribunal had not done, however, was to step back and look at the overall picture presented by the evidence. This showed that Ms Talbot was the only female engineer in the team and that she had not been invited to key meetings, her work was loudly and openly criticised by others, and that she was accused of having an aggressive and hostile attitude towards her colleagues using language which one colleague said was not often heard ‘coming from a lady’.

At one stage her manager had told her to be ‘kinder, gentler and nicer’ and had admitted that he would not have used those words if he had been addressing a man. She had made a number of allegations of specifically sexist comments made by colleagues but the tribunal had rejected each one simply on the basis that it was one person’s word against another and there was no basis for preferring Ms Talbot’s version of events over that of her colleagues.

For further information contact Furley Page employment team on 01227 763939.