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 wrongly extended them, giving the respondents no fair notice. She now appealed against the reversal of those claims.
Held: Her appeal was allowed and the EAT’s decision quashed. The case was remitted to the same employment tribunal to decide whether, if it had had regard to the only issues which the court considered to be relevant to the claims of discrimination, it would have come to the same or a different conclusion.
Lord Justice Clerk, giving the opinion of the court, said that ET’s approach was correct. It had decided that a conclusion was available to it that the Board had treated the claimant differently from the two comparators and to her detriment. In the light of its handling of the appellant’s complaints, that difference of treatment supported an inference of discrimination which it was then for the Board to rebut. When considering the inferences to be drawn from the primary facts, the employment tribunal had to assume that there was no adequate explanation for them. It was sufficient for it to decide whether, on the primary facts, it could conclude in the absence of an adequate explanation that the Board had committed an act of discrimination. If it so decided, the burden of proof shifted to the Board. As to comparators, the EAT had simply substituted its own judgment on the point on a consideration of the findings of fact. Unless the employment tribunal’s judgment on a question of that kind was absurd or perverse, it was not for the EAT to impose its own judgment on the point. It was entitled to conclude that Professor Forrester and Mr Larmour were appropriate comparators.
Judges:
Lord Justice Clerk, Lord Bonomy, Lord Nimmo Smith
Citations:
[2011] ScotCS CSIH – 4, 2011 SLT 319, 2011 GWD 4-127
Links:
Statutes:
Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001, Sex Discrimination Act 1975, Race Relations Act 1976, Employment Act 2002 (Dispute Resolution) Regulations 2004
Citing:
Appeal from – Grampian Health Board v Hewage EAT 4-Feb-2009
EAT SEX DISCRIMINATION: Burden of proof
RACE DISCRIMINATION: Inferring discrimination
Tribunal found Claimant to have suffered both sex and race discrimination in course of her employment as a . .
Cited by:
Appeal from – 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 . .
Lists of cited by and citing cases may be incomplete.
Scotland, Discrimination, Employment
Updated: 31 August 2022; Ref: scu.428020