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Race Discrimination
Rad Kohanzad appeared for Stay Safe East in Stay Safe East v Monique Francois [2025] EAT 199, an appeal concerning the legal test for shifting the burden of proof in a direct race discrimination claim. The Employment Appeal Tribunal (EAT) held that the Employment Tribunal had erred in law by treating differences in treatment and racial identity as sufficient without properly addressing the requirement for “something more”. It also found that the Tribunal had not adequately explained its reasoning about the identity of the relevant decision-makers. The appeal succeeded, and the case was remitted to a differently constituted Employment Tribunal for a rehearing.
Background to the appeal
Monique Francois brought claims arising from her employment with Stay Safe East, a charity supporting disabled people. The appeal concerned her claim of direct race discrimination arising from the refusal to make a discretionary payment during sickness absence.
Ms Francois relied on the treatment of a white colleague, who had received full pay for approximately nine months during sickness absence in 2020. Ms Francois, a Black woman with a physical disability, had not received equivalent discretionary payments. The Employment Tribunal found that the difference in treatment supported an inference of race discrimination and that the burden of proof had shifted to Stay Safe East.
Stay Safe East appealed. The live ground challenged the Tribunal’s approach to the burden of proof, including its failure to identify the additional evidence needed to support an inference of discrimination. The appeal relating to unlawful deductions from wages was withdrawn during the EAT proceedings, so the EAT did not determine that issue.
The legal issue: when does the burden of proof shift?
Under section 136 of the Equality Act 2010, a tribunal must consider whether there are facts from which it could decide, in the absence of an adequate explanation, that a person contravened the Act. If that threshold is met, the burden shifts to the respondent to prove that it did not contravene the relevant provision.
The issue was whether the difference between Ms Francois’s treatment and that of her comparator, considered alongside their respective racial identities, was sufficient to shift the burden of proof.
The EAT considered the principles in Madarassy v Nomura International plc and Efobi v Royal Mail Group Ltd. Those authorities establish that a difference in status and a difference in treatment, without more, do not by themselves provide a sufficient basis for inferring discrimination. The tribunal must consider the evidence as a whole and identify a proper evidential basis for the inference.
Why the EAT allowed the appeal
1. The Tribunal had not applied the correct evidential test
The Employment Tribunal had concluded that the comparator’s treatment and the racial identities involved justified shifting the burden of proof. It described the situation as one in which managers looked after someone like themselves but not someone different.
The EAT held that the Tribunal had not properly directed itself to the requirement for “something more” beyond a difference in treatment and status. The Tribunal’s reasons did not demonstrate that it had applied the relevant legal test before concluding that the burden had shifted.
The EAT also rejected the argument that the starkness of the difference in treatment could itself amount to the required “something more”. The authorities did not establish a quantitative distinction between major and minor differences in treatment. The question was whether the evidence provided a legally sufficient basis for inferring discrimination, not simply whether the difference appeared substantial.
2. The Tribunal had not adequately explained its reasoning about the decision-makers
The EAT identified a further problem with the Tribunal’s written reasons. It had not explained the basis for concluding that the same decision-makers had been involved in the treatment of Ms Francois and her comparator.
That mattered because the Tribunal relied on the decision-makers’ conduct when inferring discrimination. Without explaining who had made the relevant decisions and how the evidence supported its conclusions, the Tribunal’s reasoning was inadequate.
The EAT held that, in this respect, the decision did not satisfy the standard associated with Meek v City of Birmingham District Council: the reasons must adequately explain the tribunal’s conclusions so that the parties can understand why they won or lost.
3. The case was remitted for a rehearing
The EAT allowed the appeal and remitted the matter to a newly constituted Employment Tribunal for a rehearing.
The decision did not determine that the underlying race discrimination claim must fail. It identified errors in the original Tribunal’s legal approach and reasoning. The claim therefore remained to be reconsidered by the fresh tribunal.
The EAT also commented on the circumstances in which the original hearing had proceeded, including the fact that the respondent had not received the claimant’s witness statement in advance and its representative was unable to attend part of the hearing. However, the appeal was allowed on the legal and reasoning defects identified in the judgment; the outcome should not be presented as establishing a general rule that a tribunal must adjourn whenever a witness statement has not been received.
Key legal principles
Different treatment is not, by itself, enough. A difference in treatment and a difference in a person’s protected characteristic do not automatically justify an inference of discrimination. The evidence must satisfy the applicable statutory test.
The burden of proof must be approached correctly. A tribunal must identify a proper evidential basis for shifting the burden under section 136 of the Equality Act 2010, applying the relevant authorities.
Reasons must explain the material conclusions. Where a tribunal relies on the identity or conduct of decision-makers to infer discrimination, its reasons must adequately explain the factual basis for that conclusion.
These points reflect the EAT’s application of established legal principles in this case. The judgment is not best described as creating a new test for discrimination.
What this decision means for a potential Employment Tribunal appeal
If an Employment Tribunal has found discrimination, it is important to examine how it reached that conclusion. A possible appeal issue may arise where the Tribunal has shifted the burden of proof without applying the correct legal test, or where its written reasons do not adequately explain the factual basis for an important inference.
However, an unfavourable decision or an apparent inconsistency in treatment does not automatically establish an error of law. The assessment depends on the Tribunal’s reasons, the evidence and the legal test applicable to the claim. An appeal is not simply an opportunity to ask the EAT to reach a different view of the facts.
In Stay Safe East v Francois, the successful appeal concerned the legal approach to the burden of proof and the adequacy of the Tribunal’s reasoning. The EAT ordered a rehearing rather than deciding the discrimination claim itself.
If you have received an unfavourable Employment Tribunal judgment, I can review the decision 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 appeal.
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Case details
Case: Stay Safe East v Monique Francois
Neutral citation: [2025] EAT 199
Case number: EA-2024-000929-RN
Judgment date: 5 December 2025
Judge: His Honour Judge Barklem
Counsel for the Appellant: Rad Kohanzad, instructed by Croner
Outcome: Appeal allowed; remitted to a newly constituted Employment Tribunal for a rehearing
Official judgment: Read the full EAT judgment (PDF)
