In addition the Court of Appeal’s groundbreaking decision that once an employee has proven a version of events, which could be discriminatory, it is then up to the employer to prove that their actions were not discriminatory. Bearing in mind that compensation in discrimination cases is potentially unlimited, and the average award in discrimination cases is on the up (the highest ever award being £814,000), discrimination law is something that employers cannot afford to ignore.

The Court of Appeal was recently charged with the task of examining where the burden of proof lies in discrimination cases. It looked at whether it is for the employee to prove that he has been discriminated against or whether it is the employer’s job to show that the employee has not been discriminated against.

The Court heard three cases together - Igen Ltd v Wong involved a complaint by an employee that her appraisal had been tainted by race discrimination; Emokpae v Chamberlin Solicitors revolved around a single racist remark and Brunel University v Webster concerned the dismissal of a female employee following office rumours that she had had an affair with a male manager.

In a truly landmark decision the Court decided that after an employee has proven facts, which suggest that they have been discriminated against, the burden of proof shifts to the employer to provide an adequate non-discriminatory explanation for their treatment of the employee.

If the employer cannot show that there was no discrimination whatsoever involved in the alleged acts of discrimination the Tribunal must uphold the employee’s complaint of discrimination.

The practical effect of this decision on employers is that they are likely to lose the case unless they can provide a detailed paper trail evidencing the non-discriminatory reason for the treatment about which the employee is complaining. In the absence of such evidence the Court will infer that the real reason for the employers treatment of the employee was discriminatory.

The decision will have an impact on any claim alleging discrimination on a protected ground (including disability), and it is hoped the decision will reinforce previous changes introduced by the government, and help stamp out discrimination in the workplace. It will certainly lead to more out of court settlements since unless employers have dutifully created and maintained a comprehensive paper trail they will be heading for certain defeat at Tribunal.

There is no cap on the compensation, which may be awarded in discrimination cases, and last year Dr. Chaudhary was awarded £814,000 as compensation for the British Medical Association’s failure to support his allegations of discrimination against various professional bodies. That lack of support was held to be discriminatory.

Employers must ensure that they recognise when their acts are potentially discriminatory. For example, a failure to amend their grievance procedure to allow a depressed (and thus potentially disabled) employee to participate fully in the procedure may give rise to allegations of disability discrimination; pressurising a female employee to exceed her sales target before starting maternity leave or requiring her to use the toilets to express breast milk will leave you open to allegations of sex discrimination; and failing to provide an interpreter when disciplining an employee who’s understanding of English is limited may lead to allegations of race discrimination.

The message is clear - the Courts are taking a hard line on employers found guilty of discrimination. With the number of employee’s pursuing discrimination cases against employers on the rise, and recent changes to outlaw discrimination on new grounds (i.e. sexual orientation, religion, etc) employers must make sure that they are aware of their responsibilities under discrimination law, and if and when an employee does allege discrimination they know how to handle that complaint.