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Case law: Employers may be able to show that statistics implying discrimination are due to non-discriminatory factors

Employers faced with discrimination claims based on statistics appearing to show discriminatory treatment against certain categories of employee, may be able to show non-discriminatory reasons for the statistics, and therefore no unlawful discrimination, following a recent ruling.

Legal Alert

This update was published in Legal Alert - September 2016

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

A solicitor argued that the reason his firm had not offered him a partnership when it restructured was his age. He claimed age discrimination, relying on statistics which showed that someone's chances of becoming a partner (or equivalent) reduced as they got older.

If an employee can provide sufficient evidence that there may have been unlawful discrimination (known as a 'prima facie' case), then the burden of proof shifts to the employer to prove there has not been unlawful discrimination.

The Employment Appeal Tribunal found that the statistical evidence was not, of itself, evidence of unlawful discrimination as there were material differences between the solicitor's circumstances and those of his colleagues.

Operative date

  • Now


  • Employers faced with discrimination claims based on statistical analysis apparently showing discriminatory treatment of certain categories of employee should ensure the statistics can be explained by non-discriminatory factors, and are not therefore prima facie evidence of discrimination

Case ref: Fennell v Foot Anstey LLP UKEAT/0290/15/DM

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