Education Law Speed Read – 04/12/17
4th December, 2017
This week we look at the Government's announcement for a new Industrial Strategy in schools and a case which has seen a return to the burden of proof principle in discrimination cases.
The new Industrial Strategy: what it means for schools
Last week, Business Secretary Greg Clark announced the launch of the Government’s new Industrial Strategy. The white paper follows extensive engagement by Government with industry, academia and business. Subsequently there are four key elements specifically focused towards schools.
Firstly, ahead of the introduction of the new T levels in 2022 for 16-19 years old, school and college performance measures will be updated to ensure young people make an informed decision between technical or academic education, both equally valued routes.
Secondly, following the announcement in the budget last week that £27 million will be used to expand the Teaching for Mastery maths programme, this white paper will ensure the delivery of the expansion through 35 maths hubs and schools judged as ‘outstanding’.
Thirdly, the cost of building schools will be reduced as part of a construction industry sector deal. According to the white paper, the deal will reduce the cost of building new schools, reduce the environmental impact and improve the efficiency of new projects.
Finally, the strategy states that there will be annual funding of £350,000 for every maths school. This is different to the announcement in the budget which stated the £350,000 funding would only go to every specialist maths schools “that is set up”.
Prime Minister Theresa May, on the industrial strategy said it: “will help create the conditions where successful businesses can emerge and grow… whilst also making sure our young people have the skills to take on high-paid, high-skilled jobs this creates”.
Ayodele v Citylink Ltd & Anor
The decision of the Court of Appeal (CA) in Ayodele v Citylink Ltd & Anor has reversed the decision of the Employment Tribunal in Efobi v Royal Mail Group Limited. The CA has restored the earlier position by holding that in discrimination claims, the Claimant does have the initial burden of proof of showing a prima facie case of discrimination.
Facts
Mr Ayodele (A) worked as a warehouse operative at Citylink Limited’s distribution depot in Swansea until he resigned in October 2012.
A claimed he had been constructively dismissed and also brought claims in the Employment Tribunal (ET) for racial discrimination, racial harassment and victimisation.
The ET dismissed the eight separate complaints raised by A on the basis that he had not established prima facie evidence of less favourable treatment, despite the findings of undesirable conduct on behalf of the Respondent. This was because the Respondent’s treatment towards staff was universal.
A appealed to the Employment Appeal Tribunal (EAT). The EAT refused the appeal on the grounds that the ET had considered each individual complaint in detail and had looked at the accumulation of evidence which did not persuade them that A had been subject to discrimination.
Court of Appeal
A appealed on two grounds. Firstly, the ET had erred in law when it found that the burden of proof had not shifted to the Respondents because of the fact that there was a universality of undesirable treatment towards staff.
Secondly, in light of the decision in Efobi, it was argued that the ET failed to properly apply section 136(2) of the Equality Act 2010, by wrongly placing the burden of proof on the Claimant.
The CA rejected the first ground of appeal, stating that: ‘the ET did not impermissibly take into account anything that it should not have done in this context. All it was doing was making findings of fact based on all the evidence before it.’
The CA also rejected the second ground of appeal, stating that: ‘before a tribunal can start making an assessment, the claimant has got to start the case’. The CA went onto say ‘there is nothing unfair about requiring that a claimant should bear the burden of proof at the first stage.’
Accordingly, the appeal was dismissed.
Comment
The CA’s departure from the Efobi decision is significant, and restores the long-established burden of proof principle. The return to the orthodox position will be welcomed by employers as it ensures that the Respondents only need to discharge the burden of proof where the Claimant has shown that a prima facie case of discrimination needs to be answered.
If you have any queries on the above and how it will affect you, please do not hesitate to contact a member of our education team.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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