Wong v Igen Ltd and Madarassy v Nomura International plc crystallised the two stage test for tribunals to apply when determining whether a finding of discrimination should be made against an employer. That remained the position prior to the Equality Act 2010 coming into force. The new provision in s.136 of the 2010 Act introduced more flexibility into the process, though the need for a claimant to prove facts giving rise to an inference is still critical to the outcome.
Going back further still, cases such as Anya v University of Oxford sought to train our minds to make us more sensitive to the possibility of discrimination having occured at all. In each of these cases, it was recommended that facts should be assessed panoramically to see if they give rise to an inference of discrimination calling for a cogent explanation from the employer. By adopting this practice, we can avoid two pitfalls. One is of not seeing a claimant's case at its full potential. The second is to avoid thinking the burden should pass by reason of differential treatment coupled with the proscribed ground applicable to a particular claimant; it requires the fact finder to look for more than just these features alone.
The burden of proof provisions only apply in cases where a tribunal is seeking to infer just what motive was influencing a certain person's actions. Not every case will call for the provisions to be deployed. A distinction needs to be drawn between what are sometimes descrived as 'criterion' and 'motive' cases. It is only in the latter category that the provisions have relevance. However, even in 'motive' cases the provisions do not always need to be applied. Often words or actions are capable of being made the subject of positive findings or where a person's motive is known and the issue is one of legal characterisation.
One of the more agonising exercises for anyone practising in this area is to determine whether there are facts from which a tribunal could infer some discrimination in order for the burden of proof to pass to the employer. Less favourable treatment coupled with the proscribed ground relied upon has been regarded as insufficient to shft that burden over to the employer. Bearing in mind that claimants will have to rely on inferences drawn from a wide range of circumstances, interpreting events one way or the other can be a precarious exercise. Such events could be equivacol in pointing one way or the other, towards or away from a prima facie case. When discrimination is so often hidden, and when clients cannot say for sure whether a discriminatory motive exists, even subconsciously, in the mind of a work colleague, a client's instinct for having suffered some discriminatory disadvantage will need a sensitive barometer to divine whether the wind is blowing in the direction we would like it to.
Three cases in 2013 remind us of the challenges tribunals have in approaching this exercise. The reminders about good practice reinforce how the proper approach can act as a litmus test for those advising clients on both sides of the contest.
The three cases are X v Y [2012] UKEAT/0322/12/GE; Osoba v Chief Constable of Hertfordshire [2013] UKEAT/0055/13/BA and IPC Media v Millar [2013] IRLR 707.
X v Y was a case with anonymity orders applying. However, the relevant sector was that involving the rehabilitation of offenders. The Claimant, a lady of black African descent, succeeded in her claim for unfair dismissal (a constructive dismisssal). Her claim relied on a succession of incidents where the tribunal had found the employer had breached the implied term of mutual trust and confidence. There were a large number of serious breaches. The tribunal had failed to step back and consider the cumulative effect of those breaches to see if they gave a flavour of discrimination. The tribunal had made the error of considering each incident separately and had determined that each was a separate episode of management inefficiency only. Separate consideration of each episode emasculated the Claimant's case and led inevitably to a dismissal of her claim for discrimination. The treatment had clearly been less favourable, but had not been motivated by race the ET said.
The wisdom X v Y passes on is about the need to look for something more than differential treatment and proscribed ground. The trap tribunal's often fall into by separate treatment of incidents is that the approach is more likely to be self-fulfilling for someone looking for no discrimination. It can often lead to poor management being treated as the reason for the detriment, rather than it being seen as manifestation of racial motive.
In Osoba, an appeal against the dismissal of an age discrimination claim was upheld by the EAT. The Claimant who was entitled to retire but who had indicated his intention not to do so had been selected for redundancy. He said it was on the grounds of age. The officer conducting the selection exercise made a shambles of it, but resisted the suggestion that of deliberate manipulation of the selection exercise. The officer had repeadtedly admitted fault and the tribunal found that this honest explanation for the Claimant's selection had been the only motivating factor. The tribunal found the burden shifted to the employer and the issue became one of determining whether the reason advanced by the employer rebutted the inference.
The issue was therefore a narrow one. Was the officer's explanation adequate to defeat the Claimant's case? Here it was. The explanation was rooted in the incompetently carried out selection exercise. Tribunal's are frequently offered denials based on lack of motive (eg 'the Claimant's age/race/sex etc played no part in the decision') or other remote reasons which are less capable of being tested (eg 'I was overworked' or 'I had other responsibilities'). Here, however, the explanation was contextualised by the disputed redundancy exercise itself. The tribunal was not expected to look for any other reason to find the employer had done enough to rebut the inference.
IPC Media v Millar was a case where a claim of disability related discrimination was wrongly upheld by an employment tribunal. That decision was overturned on appeal. The error made by the tribunal in this case yields some important lessons for the discipline of divining whether or not there may be a case to answer. The case involved a reduncancy situation for an editor at a magazine. She had been off sick for some time because of knee problems. She was not offered positions in the re-structure and the tribunal found the reasons advanced by the employer for not offering alternative posts to her unconvincing. The case was decided principally on the nature and extent of the knowledge of the decision-maker about the Claimant's disability. The tribunal had failed to really address its mind to the facts giving rise to the inference at all and more or less assumed a case to answer existed. Had it done so, it would not have found the Claimant's case to have crossed the threshold at stage 1. The EAT made it clear that even at stage 1 of the burden of proof test, it is still important for the tribunal to make findings about what facts which in its view will allow the burden to pass.
The learning of these three cases encourages us to be clear about just what facts may give rise to an inference of discrimination in order for the burden of proof to pass to the employer. Coupled with that first principle is the need to determine the knowledge on the part of the employer of the facts which gives rise to the inference. This must be knowledge possessed by the employer's decision-makers. No-one can consciously or subconsciously discriminate about facts of which they are unaware. Where the burden has passed, what reasons are advanced, and are they cogent in the context of the subject matter of the dispute?
The write suggests these three cases offer valuable guidance to those practising in this area.
Carl Fender
Regency Chambers
Peterborough
13th November 2013
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