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 burden of proof are very common in discrimination cases: ‘The factual content of the cases does not simply involve testing the credibility of witnesses on contested issues of fact. Most cases turn on the accumulation of multiple findings of primary fact, from which the court or tribunal is invited to draw an inference of a discriminatory explanation of those facts. ‘ The new statutory provisions changed the law laid down by King v Great Britain China Centre, but changing the emphasis that a tribunal ‘must’ not ‘may’ infer discrimination in approprite circumstances.
‘Section 63A(2) does not expressly or impliedly prevent the tribunal at the first stage from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing and rebutting the complainant’s evidence of discrimination. The respondent may adduce evidence at the first stage to show that the acts which are alleged to be discriminatory never happened; or that, if they did, they were not less favourable treatment of the complainant; or that the comparators chosen by the complainant or the situations with which comparisons are made are not truly like the complainant or the situation of the complainant; or that, even if there has been less favourable treatment of the complainant, it was not on the ground of her sex or pregnancy. ‘ and ‘ it is unhelpful to introduce words like ‘presume’ into the first stage of establishing a prima facie case. ‘
The tribunal had not misunderstood or misapplied the law on the transfer of the burden of proof.
Judges:
Mummery LJ, Laws LJ, Maurice Kay LJ
Citations:
[2007] EWCA Civ 33, [2007] IRLR 246, [2007] ICR 867
Links:
Statutes:
Sex Discrimination Act 1975 63A(2)
Jurisdiction:
England and Wales
Citing:
See Also – Madarassy v Nomura International Plc CA 4-Apr-2006
. .
See Also – Madarassy v Nomura International Plc EAT 13-Jul-2004
EAT Sex discrimination: was Employment Tribunal’s approach to the evidence and the drawing of inferences incorrect and such as to cause it to misinterpret and misapply the burden of proof: was there a failure to . .
Cited – Igen Ltd v Wong CA 18-Feb-2005
Proving Discrimination – Two Stage Process
Each appeal raised procedural issues in discrimination cases, asking where, under the new regulations, the burden of proof had shifted.
Held: The new situation required a two stage process before a complaint could be upheld. First the claimant . .
Cited – Appiah and Another v Bishop Douglas Roman Catholic High School CA 26-Jan-2007
Black students of African origin, had been excluded from school after an incident. They appealed rejection of their claims for race discrimination and victimisation, saying that they had been at first excluded wrongfully.
Held: ‘Consideration . .
Cited – Brown v London Borough of Croydon and Another CA 26-Jan-2007
The claimant appealed dismissals of his claim for race discrimination, harassment and victimisation. In a new job, other team members said they were uncomfortable alone with him, and his probationary period was extended because of his failure to fit . .
Cited – Strathclyde Regional Council v Zafar; Zafar v Glasgow City Council HL 16-Oct-1997
The absence of any other explanation for the unfair dismissal of a black worker, does not of itself and inescapably lead to finding of race bias, or racial discrimination. He had been dismissed following complaints of sexual harassment, later found . .
Cited – Law Society v Bahl CA 30-Jul-2004
The claimant had succeeded before the employment tribunal in her claim of race discrimination by the respondent and senior officers. She now appealed the reversal of that judgment. The claimant asked the tribunal to draw inferences of discrimination . .
Cited – Glasgow City Council v Zafar SCS 1997
The house considered the burden of proof in cases involving allegations of discrimination.
Held: Lord Morison ‘The requirement necessary to establish less favourable treatment which is laid down by section 1(1) of the Act of 1976 is not one of . .
Cited – Network Rail Infrastructure Ltd v Griffiths-Henry EAT 23-May-2006
EAT Race Discrimination – Inferring discrimination; Burden of proof
Sex and race discrimination. Was the Tribunal entitled to find that Claimant had established a prima facie case? If so, did it properly . .
Cited – Laing v Manchester City Council EAT 28-Jul-2006
The Tribunal considered whether there was a need rigidly to approach the test for discrimination by application of the two stage test in Igen v Wong. Elias J said: ‘where the tribunal has effectively acted at least on the assumption that the burden . .
Cited – Fernandez v The Office of the Parliamentary Commissioner for Administration and Another EAT 28-Jul-2006
EAT Discrimination – burden of proof – whether Bahl v Law Society still good law – significance of first tribunal’s findings on unfair dismissal claim when second tribunal conducted discrimination hearing . .
Cited – The National Union of Teachers v L Watson EAT 13-Jun-2006
. .
Cited – Li v Atkins and Gregory Ltd EAT 5-Jul-2006
EAT Race Discrimination – Direct; Burden of proof
Claims of race discrimination arising out of a dismissal were rejected. Tribunal found both that the Appellant had failed to establish a prima facie case and . .
Cited – Fox v Rangecroft and Elmbridge Borough Council CA 13-Jul-2006
. .
Cited – Barton v Investec Henderson Crosthwaite Securities Ltd EAT 6-Mar-2003
EAT Sex Discrimination – Inferring Discrimination
The claimant sought compenstion for sex discrimination. She appealed a finding of a material factor justifying the difference in pay.
Held: The new . .
Cited – King v Great Britain China Centre CA 1991
The court considered the nature of evidence which will be available to tribunals considering a race discrimination claim.
Held: A complainant must prove his or her case on the balance of probabilities, but it is unusual to find direct evidence . .
Cited by:
Cited – Brown v London Borough of Croydon and Another CA 26-Jan-2007
The claimant appealed dismissals of his claim for race discrimination, harassment and victimisation. In a new job, other team members said they were uncomfortable alone with him, and his probationary period was extended because of his failure to fit . .
Cited – Appiah and Another v Bishop Douglas Roman Catholic High School CA 26-Jan-2007
Black students of African origin, had been excluded from school after an incident. They appealed rejection of their claims for race discrimination and victimisation, saying that they had been at first excluded wrongfully.
Held: ‘Consideration . .
Cited – Atabo v Kings College London and others Newman, Methven, Law CA 19-Apr-2007
The claimant sought leave to appeal dismissal of her claim for discrimination, saying that the EAT had missapplied the test in Madarassy and associated cases on the burden of proof.
Held: ‘the applicant did not make out a prima facie case of . .
Cited – Stockton on Tees Borough Council v Aylott EAT 11-Mar-2009
EAT JURISDICTIONAL POINTS
Extension of time: just and equitable
2002 Act and pre-action requirements
DISABILITY DISCRIMINATION
Disability related discrimination
Direct disability . .
Cited – Fosh v Cardiff University EAT 23-Jan-2008
The professor had sought time off to represent another lecturer claiming race discrimination against the University. The University said that her behaviour created a conflict of interest with the University. She continued and herself claimed . .
Cited – Cumbria Probation Board v Collingwood EAT 28-May-2008
EAT DISABILITY DISCRIMINATION
Disability / Disability related discrimination / Reasonable adjustments
JURISDICTIONAL POINTS
>2002 Act and pre-action requirements
The date of disability is . .
Cited – 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 . .
Cited – Veolia 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.
Discrimination
Updated: 09 July 2022; Ref: scu.248235