< Back to Cases
Discrimination and Burden of Proof
Rad Kohanzad appeared as Direct Access counsel for Dr B Jones in this appeal concerning the burden of proof in race discrimination, sex discrimination and victimisation claims. The appeal considered whether an Employment Tribunal had properly assessed allegations that descriptions of a Black woman’s behaviour as “aggressive”, “hostile” and “direct” reflected racial or sex-based stereotyping, and whether the timing and circumstances of workplace investigations supported an inference of victimisation. The Employment Appeal Tribunal (EAT) dismissed all three grounds, finding that the Tribunal had correctly applied the law and made positive findings about the reasons for the treatment in question.
Background to the appeal
Dr Jones worked for Viiv Healthcare UK Limited as Head of Medical Affairs, Strategy and Operations. During her employment, she raised concerns about what she considered to be racial microaggressions and discriminatory treatment. The employer subsequently investigated concerns about her conduct, including her handling of an internal recruitment process and her working relationships with colleagues. She was suspended and later dismissed following a breakdown in working relationships.
Dr Jones brought multiple Employment Tribunal claims against the company and individual respondents, including direct race and sex discrimination and victimisation. The Tribunal dismissed all her complaints. Her EAT appeal challenged the dismissal of certain discrimination and victimisation complaints, rather than every claim brought before the Tribunal.
The appeal focused on three questions: whether the Tribunal had properly considered possible stereotyping; whether the circumstances and timing of a recruitment investigation supported an inference of victimisation; and whether the Tribunal had adequately examined whether Dr Jones’s earlier discrimination complaints contributed to the breakdown in working relationships that led to her suspension and dismissal.
The legal issue: the burden of proof in discrimination claims
Section 136 of the Equality Act 2010 governs the burden of proof in discrimination proceedings. Where a claimant establishes facts from which a Tribunal could decide, in the absence of another explanation, that unlawful discrimination occurred, the Tribunal must find that a contravention occurred unless the respondent proves otherwise.
The appeal raised an important question about how that test should be applied to the evidence. In Madarassy v Nomura International plc [2007] IRLR 246, the Court of Appeal explained that a difference in treatment and a difference in protected characteristic will not, without more, necessarily establish facts from which discrimination could be inferred. However, the phrase “something more” is not a freestanding statutory rule that dictates the outcome whenever a particular feature is present or absent.
The EAT emphasised that the section 136 assessment is fact-sensitive. It must be undertaken in the context of the evidence as a whole, rather than by applying a checklist of features that automatically shift—or fail to shift—the burden of proof.
The EAT’s decision and reasoning
1. Allegations of racial and sex-based stereotyping
Dr Jones argued that descriptions of her as “aggressive”, “hostile” and “direct” could reflect stereotypes about Black women. Her case was that conduct characterised in those terms might have been assessed differently if she had been a white man. Her counsel also argued that the Tribunal needed to consider whether the use of such language was a warning sign of stereotyping, including unconscious stereotyping.
The EAT accepted that stereotyping can amount to direct discrimination where an adverse assessment of an individual is materially influenced by a generalised belief or assumption about people who share a protected characteristic. It also recognised that language used to describe a person’s behaviour may be relevant evidence.
The question, however, was not whether particular words can ever indicate discrimination. It was whether the Tribunal had properly considered the words used in the context of this case.
Reading the Tribunal’s decision as a whole, the EAT concluded that it had. The Tribunal had considered the specific language relied on by Dr Jones and made detailed findings about the underlying events, the 360-degree performance review and the evidence from colleagues. It found that the criticisms of her communication and working style were genuine and evidence-based, rather than the product of race or sex-based stereotyping.
The EAT rejected the argument that the Tribunal had failed to consider the possibility of stereotyping or had approached the burden of proof incorrectly. It also declined to treat the existence of multiple similar reports as inherently unreliable. Although multiple accounts could, in another case, reflect groupthink, confirmation bias, a toxic environment or collusion, the significance of those possibilities depends on the evidence in the individual case.
2. The recruitment investigation and alleged victimisation
The second ground concerned an investigation into Dr Jones’s conduct during an internal recruitment exercise. She argued that the seriousness of an allegation of dishonesty, together with the timing of the investigation after she had raised discrimination complaints, supported an inference of victimisation.
The EAT found that the Tribunal had considered the chronology and the circumstances surrounding the investigation. It had made positive findings about concerns raised by managers, HR professionals and candidates about the recruitment process. It had also recognised that the timing could create an appearance of victimisation.
But recognising that an investigation might appear retaliatory is not the same as finding that it was materially influenced by a protected act. The Tribunal had found that the concerns about the recruitment exercise were genuinely held and that the investigation was not a plot to discredit Dr Jones. Those findings provided a reasoned basis for rejecting the complaint.
The EAT therefore concluded that the Tribunal had not erred in its treatment of the burden of proof or its assessment of the evidence relating to victimisation.
3. The breakdown in working relationships, suspension and dismissal
The third ground argued that the Tribunal had failed to consider whether Dr Jones’s earlier discrimination complaints had contributed to the breakdown in working relationships relied on by the employer when suspending and dismissing her.
The EAT rejected this ground too. The Tribunal had made specific findings about why the employer suspended Dr Jones, including the developing concerns about working relationships, the difficulties in identifying an effective management arrangement and the impact of interactions on colleagues. It had also made positive findings about the reasons for the dismissal and the rejection of her internal appeal.
Those findings addressed the central question of whether the relevant decisions were materially influenced by her protected acts. The EAT held that they provided an answer to the victimisation complaints and that the Tribunal had not made the legal error alleged. The appeal was dismissed in full.
Key legal principles
The burden of proof is fact-sensitive. Section 136 of the Equality Act 2010 requires an assessment of the whole factual context, not a mechanistic checklist of factors that automatically shift the burden.
Language may be evidence of stereotyping. Words such as “aggressive” or “hostile” can be relevant to a discrimination claim, but their significance depends on the context and the evidence about why the language was used.
Multiple accounts are not automatically evidence of bias—or proof against it. A Tribunal must assess whether reports from different people are genuinely independent and reliable in the context of the case. The presence of multiple reports does not establish a universal rule either way.
Positive findings about reasons for treatment matter. Where a Tribunal has made reasoned findings about why an employer acted, the EAT will consider those findings when assessing whether the Tribunal erred in applying the burden of proof.
These points apply established principles rather than creating an automatic new test for discrimination or victimisation claims.
What this case means for someone considering an Employment Tribunal appeal
A Tribunal’s handling of the burden of proof can be an important issue in an appeal involving discrimination or victimisation. For example, a decision may warrant closer scrutiny if the Tribunal overlooked material evidence suggesting stereotyping, failed to consider whether a protected act influenced the treatment, or applied the burden of proof as a rigid formula rather than evaluating the evidence as a whole.
However, Jones v Viiv Healthcare also illustrates the limits of an appeal. The EAT did not decide that the language used in the workplace was incapable of reflecting racial or sex-based stereotypes. It accepted that such language can be relevant, but concluded that the Tribunal had considered the allegation properly and made findings supported by the evidence.
An appeal is not a rehearing of the facts. Disagreement with a Tribunal’s assessment of witnesses or evidence will not, by itself, establish an error of law. The key question is whether the decision contains an identifiable legal error that could justify appellate intervention.
If you have received an unfavourable Employment Tribunal decision involving discrimination, victimisation or the burden of proof, I can review the written reasons and advise on whether there may be arguable grounds for an appeal before you decide whether to incur the further costs of pursuing it. If you decide to proceed, I can also advise on and represent you in the EAT.
Read more about my Employment Tribunal appeal review and advice service
Case details
Case: Dr B Jones v Viiv Healthcare UK Ltd and Others
Neutral citation: [2026] EAT 24
Judgment date: 30 January 2026
Judge: His Honour Judge Auerbach
Case number: EA-2024-000545-OO
Outcome: Appeal dismissed; all three grounds failed.
Counsel for the Appellant: Deshpal Panesar KC and Rad Kohanzad (Direct Access counsel).
Counsel for the Respondents: Laura Bell, instructed by Eversheds Sutherland (International) LLP.
Official judgment: Read the full EAT judgment (PDF)
