Discrimination just got harder to prove

Thinking of bringing a discrimination case against a bank? After Andrea Madarassy lost her appeal against Nomura last week, you may want to think again.

What did the case involve?

After being made redundant whilst on maternity leave six years ago and 'marginalised and mistreated', according to The Times, during her pregnancy, Madarassy was bringing a 1m discrimination case for alleged sexual discrimination. She lost her second appeal on Friday.

Why was the ruling significant?

It will make it more difficult for people to establish that discrimination took place, says Jane Mann, head of employment law at solicitors Fox Williams.

If you're bringing a case, it can be very difficult to prove from the outset that you've been discriminated against. Lawyers acting on behalf of claimants welcomed developments in recent years which shifted the burden of proof to employers. Madarassy appears to have shifted it back to employees.

How can I prove discrimination?

"In the past, some lawyers thought all you had to do was to prove a difference in treatment between a woman and a man and it would be up to the employer to show that they hadn't discriminated," says Mann.

Not any more. From the start Mann says you'll now need to show that you've been treated less favourably than colleagues (or 'hypothetical comparators'), and to show that your less favourable treatment was down to sex discrimination.

To claim or not to claim?

Mann says the latest developments will put potential discrimination claimants off (they apply equally to racial, age or religious discrimination as to sex discrimination).

But others are not so sure. James Davies, an employment law partner at Lewis Silkin, says the Madarassy case has shifted the burden of proof only 'marginally' and won't impact anyone thinking of bringing a case for the first time.

Davies says that it will, however, have implications for anyone thinking of appealing a tribunal's decision on a discrimination claim - Madrassy's loss has made it harder to have rulings overturned on technicalities.