Hewage v Grampian Health Board: SC 25 Jul 2012

The claimant had been employed as a consultant orthodontist. She resigned claiming constructive dismissal and sex and race discrimination. The EAT reversed the findings on discrimination saying that they had not been sufficiently pleaded. The Court of Session re-instated the discrimination findings and the Board now appealed.
Held: The Board’s appeal failed. Although the positions of the comparators had not exactly matched those of th eclaimant, this was a question of fact and degree, and the ET’s conclusion had been supported by facts.
The Tribunal’s aproach on the two stage test in discrimination had been correctly based on Igen v Wong, and in the absence of an explanation for the different treatment of the two comparators it had been entitled to infer discrimination.
The Inner House had been best positioned to decide whether the case should be remitted to the same or a new tribunal.

Lord Hope, Deputy President, Lady Hale, Lord Mance, Lord Kerr, Lord Reed
[2012] IRLR 870, 2012 GWD 25-521, [2012] UKSC 37, UKSC 2011/0050, [2012] WLR(D) 235, [2012] Eq LR 884, [2012] ICR 1054, [2012] 4 All ER 447
Bailii, Bailii Summary, SC Summary, SC, WLRD
Employment Rights Act 1996 94(1), Sex Discrimination Act 1975, Race Relations Act 1976
At EATGrampian Health Board v Hewage EAT 4-Feb-2009
RACE DISCRIMINATION: Inferring discrimination
Tribunal found Claimant to have suffered both sex and race discrimination in course of her employment as a . .
Appeal fromHewage v Grampian Health Board SCS 14-Jan-2011
The claimant had succeeded in her claim for constructive unfair dismissal, and of sex and race discrimation at the tribunal. The EAT reversed the discrimination findings saying that the claimant had not set them out in her ET1, and the Tribunal had . .
CitedShamoon v Chief Constable of the Royal Ulster Constabulary HL 27-Feb-2003
The applicant was a chief inspector of police. She had been prevented from carrying out appraisals of other senior staff, and complained of sex discrimination.
Held: The claimant’s appeal failed. The tribunal had taken a two stage approach. It . .
CitedMadarassy v Nomura International Plc CA 26-Jan-2007
The claimant appealed against adverse findings on her claims of sex discrimination. The court considered questions arising from the provisions relating to the transfer of the burden of proof in a discrimination case.
Held: Questions of the . .
CitedMartin v Devonshires Solicitors EAT 9-Dec-2010
C, a legal secretary in a firm of solicitors, as a result of mental illness makes false allegations against partners of discriminatory conduct (contrary to SDA and DDA) – Unwilling to . .

Cited by:
CitedVeolia Environmental Services Uk v Gumbs EAT 7-Feb-2014
EAT Race Discrimination : Inferring Discrimination – Burden of proof
The submission that both Madarassy v Nomura International plc [2007] ICR 867 and Hewage v Grampian Health Board [2012] ICR 1054 support . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Leading Case

Updated: 01 November 2021; Ref: scu.463143