Affirmative Defence Rebuts PF Case
The nature of such rebuttal evidence explaining why the prima facie case should not succeed may at times be a difficult issue for the decision maker to consider. The more direct the affirmative evidence, the stronger will be the employer’s case to deflect from the alleged code violations.
Cases in which the employer states that the applicant, for example, was not the right “fit”, often may be viewed skeptically. Such a factor may well be entirely legitimate but this explanation has been noted as one which “at times can be used to conceal discriminatory considerations”.1 It is hence preferred that the evidence of the employer be based on “objective and non-discriminatory criteria and assessments” based on “actual characteristics and qualities”.2
A further example of such an affirmative defence to rebut the prima facie case confronting the employer was seen in a 2011 tribunal decision. 3
The applicant had proven a prima facie case of adverse treatment due to age with respect to her submission for the promoted position of Vice-Principal at Lord Dufferin School. The evidence offered to support this preliminary step was that the applicant met all the performance criteria for the position. 4
The respondent was hence called upon to give evidence, which was convincing and won the day. The Board’s witness explained the process of promotion did not allow a candidate to be chosen from the same school to which the appointment was intended. The claim was dismissed.