[Thanks to Rosa Dickinson of St Philips Chambers for preparing this case summary]
Can a tribunal take into account inadequate explanations, falling short of dishonest explanations, in determining whether the burden of proof has shifted?
Yes, says the EAT in Birmingham City Council and Semlali v Millwood.
A black employee was treated disadvantageously when compared with an Asian colleague who was found to be in materially the same circumstances. The employment tribunal accepted that this did not, without more, justify a shifting of the burden of proof. The tribunal was however permitted to take inadequate explanations into account and in so holding, Langstaff P drew a distinction with the dicta in Madarassay where it was held that the absence of an adequate explanation is not relevant to whether there is a prima facie case of discrimination.
The employee had not been offered a permanent contract. The tribunal disbelieved, and found inconsistent, the explanations that the employer had offered for this; but made no findings that the explanations were dishonest. Langstaff P held, "Although a tribunal must by statute ignore whether there is any adequate explanation in stage one of its logical analysis of the facts, that does not mean, in our view, to say that it can and should ignore an explanation that is frankly inadequate and in particular one that is disbelieved"
On the facts, the tribunal did not make sufficiently clear precisely what it regarded as the shortcomings in any explanation of the employer as the "something more" in addition to difference in status and less favourable treatment, and the case was accordingly remitted.