The Burden of Proof. Trier May 2013 Declan O Dempsey [email protected]

Transcription

1 The Burden of Proof Trier May 2013 Declan O Dempsey [email protected]

2 What is it? Common Law country- judge = neutral; parties display evidence before the judge. They are responsible for the points they make or fail to make. Civil Law country - judge more inquisitorial - not simply the decision maker; procedure emphasises written documents containing the evidence. Evidence is not necessarily disclosed to both parties.

3 Who asserts must prove the person who asserts a fact must prove it However particular difficulties of discrimination cases led in the UK to development of recognition of certain special features: discrimination rarely openly displayed; defendants may not be aware of discriminating; discrimination does not presuppose a bad motive; often the relevant evidence is only in the hands of the Defendant;

4 Proving discrimination (It s different) It may be a conclusion or inference which is drawn from considering the facts which can be proved by the Claimant. So there will be some evidence from which it would be acceptable to draw the inference that discrimination was the cause of the person s treatment Thus person A treats another (B) less favourably than another person (C) The court finds that there is a difference of (e.g.) race between B and C, It is permissible for the court to draw the inference that discrimination has occurred (if all the material circumstances are the same).

5 What happens when the burden shifts? In the UK the judges considered that because the evidence lies in the hands of the Defendant often, If it would be reasonable to draw the inference that discrimination has occurred, It will try to see whether the Defendant can prove facts which would provide an explanation for the difference in treatment which does not rely on (e.g.) racial differences. If there is no such explanation then it is appropriate to accept the evidence and to conclude that discrimination has taken place.

6 The route to burden shifting at the ECJ/CJEU C-109/88, Handels- og Kontorfunktionærernes Forbund i Danmark v Dansk Arbejdsgiverforening, acting on behalf of Danfoss in summary: in discrimination cases the defendant must explain certain facts established by the Claimant and if they are not explained, the court will draw the inference that discrimination has taken place.

7 Clarification of burden shifting C-127/92, Enderby v. Frenchay Health Authority The claimant must prove discrimination but the burden of proof (...) may shift when that is necessary to avoid depriving workers who appear to be victims of discrimination of any effective means of enforcing the principle of equal pay (...) Accordingly, when a measure distinguishing between employees on the basis of their hours of work has in practice an adverse impact on substantially more members of one or other sex, that measure must be regarded as contrary to the objective pursued by Article 119 [currently Article 141]

8 Prima facie evidence Enderby (...) if the pay of speech therapists is significantly lower than that of pharmacists and if the former are almost predominantly women while the later are predominantly men, there is a prima facie case of sex discrimination. (...) Where there is a prima facie case of discrimination, it is for the employer to show that there are objective and nondiscriminatory reasons for the difference in pay. Workers would be unable to enforce the principle of equal pay before national courts if evidence of a prima facie case of discrimination did not shift to the employer the onus of showing that the pay differential is not in fact discriminatory (see, by analogy, the judgment in the Danfoss Case (...).

9 Directive 97/80 effective enforcement principle purpose of the Directive is the facilitation of the assertion of the rights of those who consider themselves wronged measures to implement that principle are to be made more effective States must ensure that: When a claimant establishes facts from which discrimination may be presumed Respondent must prove that there has been no breach of the principle of equal treatment

10 Repeated Art. 8(1) of Council Directive 2000/43 (the Racial Equality Directive) implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, Art. 10(1) of Council Directive 2000/78 (the Framework Directive) establishing a general framework for equal treatment in employment and occupation (covering discrimination on grounds of religion or belief, disability, age or sexual orientation) and Art. 19(1) of Directive 2006/54 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (also known as the Recast Directive).

11 Does not apply proceedings in which it is for the court or competent body to investigate the facts of the case. (e.g. article 19(3) of the recast Directive); Where the investigator also rules on the case equality officers in Ireland for example.

12 Examples of implementation Hungary: proof of a protected characteristic and a disadvantage is enough to create the rebuttable presumption. (no need to show a comparator); Ireland: the primary facts must be proved on a balance of probabilities: the court must be persuaded that they are of sufficient significance to create the presumption.

13 The UK s melange section 136 Equality Act 2010: this is interpreted as requiring the labour tribunal to consider whether on a balance of probabilities the Claimant has proved facts from which discrimination could be inferred. Courts will take account of the Respondent s explanation for these facts in determining whether they are facts from which discrimination can be inferred. What must be borne in mind by a tribunal faced with a race claim is that ultimately the issue is whether or not the employer has committed an act of race discrimination. The shifting in the burden of proof simply recognises the fact that there are problems of proof facing an employee which it would be very difficult to overcome if the employee had at all stages to satisfy the tribunal on the balance of probabilities that certain treatment had been by reason of race. Igen Ltd v Wong confirms that, and also in accordance with the Burden of Proof directive, emphasises that where there is no adequate explanation in those circumstances, then a Tribunal must infer discrimination, whereas under the approach adumbrated by Lord Justice Neill, it was in its discretion whether it would do so or not. That is the significant difference which has been achieved as a result of the burden of proof directive,

14 Indirect discrimination Burden shifts at justification; However it is not necessary to use statistics for a claimant to establish disadvantage. Some criteria (etc) are intrinsically liable to disadvantage a group. Evidence of common behaviour of a group may serve to establish the case which the employer must justify

15 ACCEPT C81/12 Asociaţia ACCEPT v Consiliul Naţional pentru Combaterea Discriminării. The facts are important; A person with influence with the potential employer made homophobic remarks relating to a player who might (or might not) be hired by the football club; Do the provisions of Article 2(2)(a) of [Directive 2000/78] apply where a shareholder of a football club who presents himself as, and is considered in the mass media as, playing the leading role (or patron ) of that football club makes a statement to the mass media in the following terms: Not even if I had to close [FC Steaua] down would I accept a homosexual on the team. Etc etc

16 Guidance for the referring court directive applies in circumstances, such as those from which the dispute in the main proceedings arises, that involve, in employment and occupation, statements concerning conditions for access to employment including recruitment conditions. Feryn does not suggest that, in order to establish the existence of facts from which it may be presumed that there has been discrimination, in accordance with Article 10(1) of Directive 2000/78, the person who made the statements concerning the recruitment policy of a particular entity must necessarily have legal capacity directly to define that policy or to bind or represent that entity in recruitment matters.

17 Guidance 2 48 The mere fact that statements such as those at issue in the main proceedings might not emanate directly from a given defendant is not necessarily a bar to establishing, with respect to that defendant, the existence of facts 50 In a situation such as that at the origin of the dispute in the main proceedings, the fact that such an employer might not have clearly distanced itself from the statements concerned is a factor which the court hearing the case may take into account in the context of an overall appraisal of the facts. the perception of the public or social groups concerned may be relevant for the overall assessment of the statements at issue in the main proceedings

18 Guidance 3 Absence of any recruitment negotiations does not preclude the possibility of establishing facts from which it may be inferred that that club has been guilty of discrimination (on these facts). Privacy: Article 10(1) of Directive 2000/78 must be interpreted as meaning that, if facts such as those from which the dispute in the main proceedings arises were considered to be facts from which it may be presumed that there has been discrimination based on sexual orientation in the recruitment of players by a professional football club, the modified burden of proof laid down in Article 10(1) of Directive 2000/78 would not require evidence impossible to adduce without interfering with the right to privacy.