JUDGMENT
Hewage (Respondent) v Grampian Health Board
(Appellant) (Scotland)
before
Lord Hope, Deputy President
Lady Hale
Lord Mance
Lord Kerr
Lord Reed
JUDGMENT GIVEN ON
25 July 2012
Heard on 26 June 2012
Appellant Respondent
Ian Truscott QC Brian Napier QC
Christine McCrossan
(Instructed by NHS
National Services
Scotland Central Legal
Office)
(Instructed by Lefevre
Litigation)
Page 2
LORD HOPE (WITH WHOM LADY HALE, LORD MANCE, LORD KERR
AND LORD REED AGREE)
1. The respondent, Mrs Sumithra Hewage, was born in Sri Lanka. She has
been a British citizen since 1998. She has devoted her professional career to the
practice of dentistry. Her speciality is orthodontics. On 1 December 1993 she
commenced employment with Grampian Health Board (“the Board”) at Aberdeen
Royal Infirmary as a consultant orthodontist. In 1996 she became Head of Service
for the Orthodontics Department. She resigned from that position on 30 November
2003. On 24 December 2004 she resigned from her employment with the Board
with effect from 31 March 2005. In September 2005 she commenced proceedings
against the Board in which she claimed under section 94(1) of the Employment
Rights Act 1996 that she had been unfairly dismissed from that employment. She
also claimed under the Sex Discrimination Act 1975 and the Race Relations Act
1976 that she had been discriminated against on the grounds of her sex and race.
2. Mrs Hewage’s claims came before an employment tribunal sitting in
Aberdeen. On the penultimate day of the hearing, which took place on various
dates between January and June 2007, it was conceded by counsel for the Board
that Mrs Hewage had been constructively and unfairly dismissed. In a judgment
which was delivered on 4 December 2007 the employment tribunal held that she
had been unlawfully discriminated against on a number of grounds of both sex and
race. By a majority decision issued on 15 April 2009 the Employment Appeal
Tribunal upheld an appeal by the Board against the decision of the employment
tribunal and dismissed Mrs Hewage’s claims of discrimination. She appealed
against that decision to the Inner House of the Court of Session. On 14 January
2011 the Second Division (Lord Justice Clerk Gill, Lord Bonomy and Lord
Nimmo Smith) allowed her appeal and quashed the decision of the Employment
Appeal Tribunal: [2011] CSIH 4, 2011 SLT 319. It remitted the case to the
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. The Board has now appealed
against the decision of the Inner House of the Court of Session to this Court. In the
meantime the employment tribunal, having considered the matter that was remitted
to it by the Inner House, has affirmed its decision to uphold Mrs Hewage’s claims
of discrimination.
Page 3
The facts
3. The complaints have their source in allegations by Mrs Hewage that she
was bullied and harassed by employees of the Board. When she held the position
of Head of Service of the Orthodontics Department Mrs Hewage attended regular
monthly management meetings to discuss how her department was functioning.
These meetings were normally attended by Mrs Helen Strachan, who was the
service manager for surgical specialities, and Mrs Edith Munro, who was the
clinical nurse manager. One of these meetings took place in Mrs Strachan’s office
on 9 September 2003. Mrs Hewage alleged that Mrs Strachan and Mrs Munro
were verbally abusive, hostile and aggressive towards her. She was very upset by
their conduct and could not bring herself to talk to anyone about the way she had
been treated. So she decided to consult an occupational health doctor, who wrote
on her behalf to the Board’s Chief Executive, Mr Alex Cumming. Mrs Hewage
met Mr Cumming on 7 October 2003. She told him about the difficulties that she
had been having with Mrs Strachan and Mrs Munro. She said that it would be very
difficult for her to continue to work with them and that she would be considering
her position. His response did not satisfy her, so she resigned from her position as
Head of the Department.
4. Mrs Hewage’s complaint about Mrs Strachan’s conduct was not the first to
have been brought to the attention of the Board’s senior management. Professor
John Forrester had experienced difficulty with Mrs Strachan when he was Head of
Service for the Department of Ophthalmology. On 4 April 2002 she accused him
of having deliberately manipulated his waiting list the previous morning to
engineer the cancellation of day case cataracts booked for that day and told him
that she would never allow that to happen again. When asked to explain herself,
she said that her accusation was based on remarks by one of his consultant
colleagues. Professor Forrester was taken aback by her challenge to his clinical
judgment that the operations should be cancelled, and by the fact that one of his
consultant colleagues had apparently spoken to her in those terms. He decided that
he could no longer work with her and that his position as Head of Service for his
department was untenable.
5. Professor Forrester wrote to the Chief Executive, Mr Cumming, on 5 April
2002 making it clear that he would not be willing to return to the position of Head
of Service if Mrs Strachan continued to have responsibilities in his department. His
resignation led to a review of the department. It was reorganised so as to provide
its Head of Service with a deputy who would be responsible for its day to day
running rather than having Mrs Strachan as its service manager. The position of
Head of Service was advertised, and Professor Forrester was the only applicant.
He was re-appointed, and the plan for the department’s reorganisation was
implemented.
Page 4
6. When Mrs Hewage resigned as Head of Service in the Orthodontics
Department Mr Colin Larmour, a consultant orthodontist, took over from her in
November 2003, initially on a temporary basis. Prior to his appointment Mrs
Hewage had made it known repeatedly that she was of the view that there should
be a consultant on the interview panel for the appointment of dental nurses. This
was a matter about which she felt very strongly. But her requests that she should
sit on this panel, which were made over a period of about two years to Mrs Edith
Munro and Sister Moira Munro, always met with resistance and they refused to
agree to them. Within days of Mr Larmour’s appointment, however, a meeting
took place on 12 December 2003 at Sister Munro’s suggestion to discuss the issue.
Mr Larmour then spoke to a consultant in the Restorative Dentistry Department,
who agreed with Mr Larmour that a consultant should be on the interview panel.
He reported this conversation to Mrs Munro and Sister Munro, who agreed
immediately that a consultant should be present. Their recommendation was then
put in place.
7. When Mr Larmour was appointed as Head of Service in the Orthodontics
Department in April 2004, both Mr Alisdair Chisholm, the Board’s General
Manager, and Mr Kenneth McLay, its Associate Medical Director, assured him of
their support. He told Mrs Hewage that Mr Chisholm told him that if he had any
problems with Mrs Strachan he should let him know immediately. He also told her
that Mr McLay had advised him to “be friends with the service manager and you’ll
get anything signed.”
8. In December 2003 Mrs Hewage wrote to Mr McLay to complain about the
way she had been treated by Mrs Strachan and Mrs Munro at the meeting on 9
September 2003. Her complaint was referred to Dr Dijkhuizen, the Board’s
Medical Director. In March 2004 Dr Dijkhuizen wrote to Mrs Hewage advising
her that he had decided to proceed with a formal investigation by a panel under the
Board’s Dignity at Work Policy. On 15 June 2004 a copy of the main body of the
report of the investigation was sent to Mrs Hewage. She considered it to be full of
inaccuracies and omissions, and it did not reach any conclusions or make any
recommendations. It contained an allegation by Mrs Strachan that Mrs Hewage’s
conduct had led to Mrs Gillian Cartwright having to go on sick leave suffering
from work-related stress caused by Mrs Hewage’s conduct. This was later shown
to be a false allegation. In her evidence to the employment tribunal Miss
Cartwright called it a blatant lie, the truth being that her stress had been caused by
Mrs Strachan herself.
9. On 24 June 2004 Mrs Hewage, who was distressed by the report, met Mr
Chisholm and asked him to relieve Mrs Strachan of any responsibilities that she
had in her department. He did not do this. The Dignity at Work panel issued its
final report on 6 August 2004. It contained some recommendations, but for the
most part it simply repeated the stated positions of Mrs Hewage, Mrs Strachan and
Page 5
Mrs Munro. On 20 August 2004 Mrs Hewage met Dr Dijkhuizen to discuss it. She
again asked him to remove Mrs Strachan from duty as service manager for her
department. He replied that there was no basis for doing this in the report, which
both Mrs Strachan and Mrs Munro considered to be totally unsatisfactory. They
had told him that they were seeking an apology from Mrs Hewage for making the
complaint.
10. On 26 August 2004 Dr Dijkhuizen wrote to Mrs Hewage, Mrs Strachan and
Mrs Munro saying that he would write to them again in September to indicate how
the report would be taken forward. But when he wrote to them again on 15
September 2004 he told them that he had decided to not to recommend that any
action should be taken. On 25 November 2004 he wrote to the appellant to inform
her that no action would be taken against Mrs Strachan regarding her false
accusation about Miss Cartwright. On 30 November 2004 Mrs Hewage wrote to
Mr Chisholm applying for a review of the outcome of the report. On 24 December
2004, having still not received a reply to her application, she submitted her
resignation from her employment with the Board with effect from 31 March 2005.
The proceedings
11. Mrs Hewage intimated her intention to raise a grievance by a letter to the
Board’s human resources manager, Miss Ashley Catto, dated 10 April 2005. She
gave details of her grievance in a letter dated 18 May 2005, and by letters dated 30
June 2005 and 22 August 2005 the British Medical Association amplified her
grievance on her behalf. Her allegation at this stage was based on one specific
comparison, which was the case of Professor Forrester. The Board appointed a
panel to consider her grievance, and an investigation was carried out. When the
panel reported on 22 March 2006 it held that Mrs Hewage’s grievance was partly
justified in relation to the Board’s delay in dealing with it. But it rejected her
allegations of bullying and harassment and of discrimination on grounds of sex and
race.
12. In her application form ET/1, in which she alleged that she had been
unfairly dismissed, Mrs Hewage gave details of her complaint of bullying and
harassment at the hands of Mrs Strachan. It also contained this statement:
“The claimant submits that other white male consultants were not
subjected to the same bullying and harassing treatment that she
suffered and that she would not have been treated in the way in
which she was were it not for her sex and race. Accordingly, she
submits that she was subjected to less favourable treatment on the
Page 6
grounds of her sex and race contrary to the Sex Discrimination Act
1975 and the Race Relations Act 1976.” [Emphasis added.]
In its reply form ET/3 the Board denied that Mrs Hewage had been constructively
dismissed. It did not respond to the allegation of discrimination, nor did it call for
further particulars as it could have done under the Employment Tribunals
(Constitution and Rules of Procedure) Regulations 2004 (SI 2004/1861), Schedule
1. During the hearing before the employment tribunal Mrs Hewage’s evidence of
discrimination was led without objection. Moreover, as the Lord Justice Clerk
observed in para 30 of his opinion, the Board chose not to call Mr McLay, Mr
Chisholm or Miss Catto to give evidence on its behalf.
13. As it was conceded that Mrs Hewage had been constructively and unfairly
dismissed, the employment tribunal concentrated on her complaints of
discrimination. It considered the Board’s treatment of Professor Forrester, the
change of attitude as to the presence of a consultant on the interview panel and its
treatment of Mr Larmour. It found that there was both sex and race discrimination
in each of these three respects. It also dealt with a number of other matters that had
been referred to in evidence, for which counsel for Mrs Hewage conceded in the
Inner House no foundation had been laid in the form ET/1. It held that the
cumulative effect of this less favourable discriminatory treatment was the reason
for her resignation and her constructive unfair dismissal: para 132. The criticism
that was advanced in the Inner House that it erred in basing this conclusion on the
cumulative effect of all the matters referred to in evidence has been met by its
determination on the remit that it would have come to the same conclusion if it had
had regard only to the three respects mentioned above.
14. The Employment Appeal Tribunal held by a majority (Lady Smith and Miss
Ayre, Mr Thomson dissenting) that Mrs Hewage had not given fair notice of a
claim of discriminatory dismissal, and that she had not given fair notice of any
allegation of discrimination beyond that which involved comparing her with
Professor Forrester: paras 37 and 38. It was not for the tribunal to extend the range
of complaints of its own motion, which was what it appeared to have done. The
EAT also held that the employment tribunal had misapplied the test laid down by
the Court of Appeal in Igen Ltd (formerly Leeds Career Guidance) v Wong [2005]
ICR 931 as to how to apply section 63A of the Sex Discrimination Act 1975
(inserted by the Sex Discrimination (Indirect Discrimination and Burden of Proof)
Regulations 2001 (SI 2001/2660)) and section 54A of the Race Relations Act 1976
(inserted by the Race Relations Act 1976 (Amendment) Regulations 2003 (SI
2003/1626)). Giving the judgment of the Court of Appeal in that case, Peter
Gibson LJ said in para 17:
Page 7
“The statutory amendments clearly require the employment tribunal
to go through a two-stage process if the complaint of the
complainant is to be upheld. The first stage requires the complainant
to prove facts from which the tribunal could, apart from the section,
conclude in the absence of an adequate explanation that the
respondent has committed, or is to be treated as having committed,
the unlawful act of discrimination against the complainant. The
second stage, which only comes into effect if the complainant has
proved those facts, requires the respondent to prove that he did not
commit or is not to be treated as having committed the unlawful act,
if the complaint is not to be upheld.”
15. The majority held that, to discharge the burden of proof that the provisions
of the statutes placed on her, Mrs Hewage was required to establish facts from
which the employment tribunal could properly infer that she had been the victim of
discrimination. If it did not do this, there could be no question of its going on to
ask whether the Board had proved that it did not commit an act of discrimination.
That question did not arise if there was no prima facie case of discrimination to
answer. The employment tribunal had fallen into error because it said in para 107
of its decision that it was required at the first stage to make an assumption in order
to shift the burden of proof at the second stage, and because it looked at only
limited aspects of the evidence where Mrs Hewage and the comparators had
received different treatment. It had closed its mind to the evidence relied on by the
Board as showing that Professor Forrester and Mr Larmour were not appropriate
like for like comparators: paras 73 and 74. Mrs Hewage had confined herself to a
case that she should be compared to actual comparators, but the actual comparators
that she had chosen did not suffice for the purpose of discharging the burden of
proof that lay on her: para 82. Mr Thomson disagreed with the majority. In his
opinion the employment tribunal were entitled to treat the comparators that Mrs
Hewage had chosen as valid comparators and, as the decision of the employment
tribunal could not be said to be perverse, it should not be interfered with.
16. In the Inner House, giving the opinion of the court, the Lord Justice Clerk
said on the issue of fair notice that on a fair and reasonable reading of the ET/1 it
was clear that Mrs Hewage had given notice that she sought a remedy in respect of
a dismissal that was both unfair and discriminatory. She had also given notice that
the comparators on which she relied were white male consultants. She had
specifically mentioned Professor Forrester, and it was obvious that the only other
white male consultant who could be a relevant comparator was Mr Larmour: para
38 and 39.
17. On the issue of onus of proof, the Lord Justice Clerk said that the approach
of the employment tribunal was correct. It was plain, reading its decision as a
whole, that it had decided that a conclusion was there to be drawn that the Board
Page 8
had treated Mrs Hewage differently from the two comparators and to her detriment
and that, in light of its handling of the appellant’s complaints, the difference of
treatment justified a prima facie inference of discrimination which it was for the
Board to rebut. In his view, in considering what inferences or conclusions could 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: para 41. As for the choice of 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: para 43.
The issues in this appeal
18. Mr Truscott QC for the Board directed his argument to the process of legal
reasoning which the employment tribunal adopted in determining that Mrs Hewage
had been discriminated against on grounds of both sex and race. He accepted that
both Professor Forrester and Mr Larmour were properly before the employment
tribunal as comparators. I think that he was not only right but bound to do so, in
view of the wording of Mrs Hewage’s ET/1 and the fact that her evidence about
the treatment which Mr Larmour received was led without objection. The key
issue, therefore, was the question of comparison. He submitted that the
employment tribunal could only conclude that there was a prima facie case of
discrimination if there was a like for like comparison. In this case it was not
comparing like with like. It had misconstrued the approach that was to be taken. It
had left out of account material parts of the evidence that would have shown that
the situations in the cases of Professor Forrester and Mr Larmour that Mrs Hewage
was relying on were entirely different. There were so many differences between
these situations that it was not open to the tribunal to draw the conclusion that it
did. It determined the issue of discriminatory dismissal without any reasoning at
all. These were errors of law which the EAT was entitled to correct.
19. Mr Truscott also submitted that the way the employment tribunal had
approached the issues in this case showed that further guidance was needed as to
the process of reasoning that should be adopted. In every case the tribunal should
approach the issue of discrimination by asking the question why: Shamoon v Chief
Constable of the Royal Ulster Constabulary [2003] UKHL 11, [2003] ICR 337,
per Lord Nicholls at para 7. The mental process of the alleged discriminator must
be examined in every case. That had not been done here. He accepted that it was
open to a tribunal to draw inferences. But the burden of proof was on the claimant
Page 9
to show that there had been treatment which was discriminatory. The Inner House
had been wrong to reverse the EAT on this point.
20. His primary submission was that Mrs Hewage’s discrimination claim
should be dismissed. If the appeal were to be dismissed, however, he said that the
question which the Inner House had remitted to the employment tribunal should be
remitted to a differently constituted tribunal because the original tribunal’s
jurisdiction was spent. The Board had appealed against its decision on the remit to
keep this point open.
Discussion
(a) was there an error of law?
21. The submission that the Inner House erred in holding that the employment
tribunal was entitled to hold that Professor Forrester and Mr Larmour were
appropriate comparators is, I think, unsustainable. It is true that the situations
which were being compared in each case were not precisely the same. Professor
Forrester’s circumstances were different. His was a much larger department. He
resigned in anger immediately on hearing of Mrs Strachan’s unfounded allegations
against him, the decision to remove her from her position as service manager was
taken by three people two of whom were not involved when Mrs Hewage
complained, he made it clear that he would not return to his position unless she
was removed and no-one else applied for it. The proposal that there should be a
consultant on the interview panel was dealt with on an inter-departmental basis
following a meeting with Mr Larmour that took place at Sister Munro’s
suggestion. As for the supportive comments that were made to Mr Larmour on his
appointment, there was no evidence as to what was said to Mrs Hewage when she
took up her position as Head of Service in the same department seven years earlier.
22. The question whether the situations were comparable is, however, a
question of fact and degree, and there was a good deal of evidence the other way.
In the case of Professor Forrester the employment tribunal summarised various
reasons that had been put forward by counsel for the Board for holding that he was
not an appropriate comparator. Its assessment, however, was that the manner in
which the Board dealt with his complaint about his service manager was in marked
contrast to the manner in which it dealt with Mrs Hewage’s complaint: see paras
108-109. This was because Mrs Strachan was removed from her position as
service manager not for any organisational reasons but solely because of the
deterioration of her relationship with Professor Forrester. It had broken down due
to her behaviour, as it had between her and Mrs Hewage. The Board addressed this
Page 10
inter-personal problem by replacing Mrs Strachan in his case but not hers, despite
her complaints.
23. When Mrs Hewage made her requests that she should be on the interview
panel, Mrs Munro and Sister Munro appeared to the employment tribunal to regard
it as a matter of principle that this was their role, not hers. Yet within a matter of
days following her resignation Mr Larmour was able to reach agreement with them
on this point without any apparent difficulty. In its view the change in attitude on
their part was astounding and inexplicable: see paras 111-113. The treatment of Mr
Larmour by senior officials on his appointment was quite different from the way
Mrs Hewage had been treated by them over a prolonged period after she had told
the Board that she could no longer work with Mrs Strachan and had sought their
support. There was evidence, which the employment tribunal accepted, that Mr
McLay was dismissive and sarcastic when Mrs Hewage discussed her problems
with him, and she received nothing like the immediate support that was offered to
Mr Larmour in the way her complaint was dealt with under the Dignity at Work
Policy: para 114.
24. The majority in the EAT were of the opinion that the employment tribunal
failed to work through stage one of the stages referred to in Igen v Wong
adequately or sufficiently: paras 73-75. They criticised its reasoning as to what it
was required to do at the first stage. In para 107 of its judgment the tribunal said
that it was mindful that it was required to make an assumption at that stage, the
purpose being to shift the burden of proof at the second stage so that, unless the
respondent provided an adequate explanation, the claimant would succeed. The
majority thought that the tribunal was wrong to say that it was required to make an
assumption at the first stage for the purpose of shifting the burden of proof. They
thought that this meant that it had decided to look only at limited aspects of the
relevant evidence. So it failed to ask itself whether, bearing in mind all the
evidence and the submissions of the parties on the like for like comparison, Mrs
Hewage had discharged the initial burden of proof.
25. The Lord Justice Clerk said in para 41 of his opinion that the majority’s
strictures on this point were not well-founded, and I respectfully agree with that
assessment. In the sentence which the majority criticised the employment tribunal
was simply following the guidance in Igen v Wong, where the court said that, in
considering what inferences or conclusions can be drawn from the primary facts,
the tribunal must assume that there is no adequate explanation for those facts: see
paras 21 and 22 and para (6) of the Annex to the Court of Appeal’s judgment. As
these passages make clear, the purpose of that assumption is to shift the burden of
proof at the second stage. It does not diminish in any way the burden of proof at
the first stage, when the tribunal is looking at the primary facts that must be
established. As Peter Gibson LJ said in para 17 of his judgment in that case, the
first stage requires the complainant to prove the facts from which the tribunal
Page 11
could, apart from the section, conclude in the absence of an adequate explanation
that the respondent has committed, or is to be treated as having committed, the
unlawful act of discrimination against the complainant.
26. It is well established, and has been said many times, that one ought not to
take too technical a view of the way an employment tribunal expresses itself, that a
generous interpretation ought to be given to its reasoning and that it ought not to
be subjected to an unduly critical analysis. But I do not think that it is necessary to
rely on that principle in this case. It is perfectly clear from the reasoning which
follows its preliminary observation that the tribunal then proceeded to examine the
evidence in order to decide what, in the absence of an adequate explanation, it
could hold had been proved. It was careful to explain, step by step in each case,
what it saw as lying at the core of Mrs Hewage’s complaint. It addressed the
central issue, which was whether these were like for like comparisons. Having
done that, it found that differences of treatment had been proved for which, in its
judgment, there appeared to be no adequate explanation. It expressed its findings
as to each case in a way that made it plain that it felt itself entitled in these
circumstances to draw a prima facie inference of sex and race discrimination in
Mrs Hewage’s favour, which it was for the Board to rebut and it failed to do. I do
not think that there is any substance in the suggestion that the tribunal misdirected
itself or that it considered only part of the evidence that it was required to examine
at the first stage.
27. For these reasons Mr Truscott’s primary submission that the employment
tribunal misdirected itself as to the onus of proof and failed to apply its mind
properly to the evidence must be rejected.
(b) guidance
28. Mr Truscott submitted that there was a need for guidance to be given by this
court as to how cases should be approached under section 63A(2) of the 1975 Act
and section 54A(2) of the 1976 Act. Section 63A(2) provides:
“Where, on the hearing of the complaint, the complainant proves
facts from which the tribunal could, apart from this section, conclude
in the absence of an adequate explanation that the respondent –
(a) has committed an act of discrimination… against the complainant
which is unlawful by virtue of Part 2 … or
Page 12
(b) is by virtue of section 41 or 42 to be treated as having committed
such an act of discrimination …
the tribunal shall uphold the complaint unless the respondent proves
that he did not commit, or, as the case may be, is not to be treated as
having committed, that Act.
Section 54A(2) is, mutatis mutandis, in the same terms.
29. In Igen v Wong, para 16, Peter Gibson LJ said that, while it was possible to
offer practical help (as to which see para 17 of his judgment quoted in para 14,
above), there was no substitute for the statutory language. And in Madarassy v
Nomura International plc [2007] ICR 867, para 9 Mummery LJ emphasised that
the Court of Appeal had gone out of its way in Igen to say that its guidance was
not a substitute for statute. As he put it, “Courts do not supplant statutes. Judicial
guidance is only guidance.” In para 11 he said that there was really no need for
another judgment giving general guidance: “Repetition is superfluous,
qualification is unnecessary and contradiction is confusing.” And in para 12:
“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. It is vital that, as far as
possible, the law on the burden of proof applied by the fact-finding
body is clear and certain. The guidance in Igen Ltd v Wong meets
these criteria. It does not need to be amended to make it work
better.”
30. Nevertheless Mummery LJ went on in paras 56 and following of his
judgment in Madarassy to offer his own comments as to how the guidance in Igen
v Wong ought to be interpreted, which I would respectfully endorse. In para 70,
having re-stated what the tribunal should and should not do at each stage in the
two stage process, he pointed out that from a practical point of view, although the
statute involved a two-stage analysis, the tribunal does not in practice hear the
evidence and the argument in two stages:
“The employment tribunal will have heard all the evidence in the
case before it embarks on the two-stage analysis in order to decide,
first, whether the burden of proof has moved to the respondent and,
if so, secondly, whether the respondent has discharged the burden of
proof.”
Page 13
31. In para 77, in a passage which is particularly in point in this case in view of
the employment tribunal’s reference in para 107 to its being required to make an
assumption, he said:
“In my judgment, it is unhelpful to introduce words like ‘presume’
into the first stage of establishing a prima facie case. Section 63A(2)
makes no mention of any presumption. In the relevant passage in
Igen Ltd v Wong … the court explained why the court does not, at
the first stage, consider the absence of an adequate explanation. The
tribunal is told by the section to assume the absence of an adequate
explanation. The absence of an adequate explanation only becomes
relevant to the burden of proof at the second stage when the
respondent has to prove that he did not commit an unlawful act of
discrimination.”
The assumption at that stage, in other words, is simply that there is no adequate
explanation. There is no assumption as to whether or not a prima facie case has
been established. The wording of sections 63A(2) and 54A(2) is quite explicit on
this point. The complainant must prove facts from which the tribunal could
conclude, in the absence of an adequate explanation, that the respondent has
committed an act of discrimination against the complainant which is unlawful. So
the prima facie case must be proved, and it is for the claimant to discharge that
burden.
32. The points made by the Court of Appeal about the effect of the statute in
these two cases could not be more clearly expressed, and I see no need for any
further guidance. Furthermore, as Underhill J pointed out in Martin v Devonshires
Solicitors [2011] ICR 352, para 39, it is important not to make too much of the role
of the burden of proof provisions. They will require careful attention where there is
room for doubt as to the facts necessary to establish discrimination. But they have
nothing to offer where the tribunal is in a position to make positive findings on the
evidence one way or the other. That was the position that the tribunal found itself
in in this case. It is regrettable that a final resolution of this case has been so long
delayed by arguments about onus of proof which, on a fair reading of the judgment
of the employment tribunal, were in the end of no real importance.
(c) the remit
33. I cannot accept Mr Truscott’s submission that the question which was
remitted to the employment tribunal by the Inner House should have been remitted
by it to a differently constituted tribunal. It remained open to the original tribunal
to re-examine the issues that were before it if directed to do so by an appellate
Page 14
court. There was an obvious advantage in remitting the matter to the original
tribunal rather than a tribunal which was differently constituted as it had already
heard and been able to assess the evidence. This was pre-eminently a matter for the
Inner House, and there are no grounds for thinking that it made the wrong choice.
The matter was properly remitted, and happily it has now been dealt with promptly
– thus eliminating the possibility of any further delay in the final resolution of Mrs
Hewage’s claim.
Conclusion
34. I would dismiss the appeal. I would affirm that part of the Second
Division’s interlocutor in which it allowed the appeal to the Inner House and
quashed the decision of the EAT. The Board must pay the costs of the appeal to
the Supreme Court.
