Discrimination
Cases
Henry Denny and Sons (Ireland v Sinead Rohan
ADE/12/45
DETERMINATION:
This is an appeal by Sinead Rohan against the Decision of the Equality Tribunal in her claim of discrimination made against her former employer, Henry Denny & Sons (Ireland) Limited. The claim was made on the gender, family status and disability grounds.
In this Determination the parties are referred to as they were at first instance. Hence, Ms Rohan is referred to as the Complainant and Henry Denny & Sons Limited are referred to as the Respondent.
The Facts
The material facts giving rise to the dispute can be summarised as follows: –
The Complainant is a woman with children. Her daughter is a person with Downs Syndrome. In advancing her claim in so far as it relates to the disability ground the Complainant relies on the judgment of the Court of Justice of the European Union (CJEU) in case C-303/06,Coleman v Attridge Law[2008] IRLR 722. Arising from that decision the Complainant contends that by reason of her caring responsibilities for her disabled child she is encompassed by what has come to be known as associative disability. The Respondent does not take issue with her contention in that regard.
The Complainant was employed by the Respondent at its Kerry plant between 1988 and September 2008 when she was dismissed by reason of redundancy. She was employed as a senior Manager from 1991 until the termination of her employment. There is some difference between the parties as to the precise description of the Complainant’s job role. The Complainant described it as‘quality manager’whereas the Respondent describes her role as that of‘systems and process development manager’. This difference in description is not material for present purposes.
In or about July 2003 the Complainant applied for parental leave pursuant to s.6 of the Parental Leave Act 1998. Her parental leave commenced on 1st August 2003 and continued until 8thSeptember 2003. Thereafter it was to continue for one day per week. In accordance with s.7 of the Act the aggregate duration of the parental leave was to be the equivalent of 14 weeks. However, the Complainant continued to work a four-day week until September 2007 when she resumed working a five-day week at the request of the Respondent. In December 2007 she reverted to four day working but intermittently worked a five-day week when the exigencies of the Respondent’s business so required.
In 2003 the Respondent introduced a bonus scheme for senior managers. In the case of the Complainant this scheme could generate additional earnings of up to 7.5% of basic pay. In or about February 2004 the Complainant received a bonus under the scheme. She did not receive any subsequent payments by way of bonus although other managers did receive such payments. There is a conflict between the parties as to the reason for the discontinuance of the bonus payments to the Complainant. The Respondent contends that in 2004 the management structure was reorganised and the Complainant ceased to hold a position in the management structure at a level to which the bonus scheme was applicable. The Complainant contends that there was no material difference in the role which she performed in 2003 and thereafter. She contends that the reason why the Respondent ceased to include her in the bonus scheme was because of her shortened working week. This in turn, she contends, related to her family responsibilities and in particular her role as the primary carer of her disabled child.
In or about April 2008 the Complainant again requested parental / carer’s leave. She proposed to work 15 hours per week with the difference between those hours and her contractual hours being taken as parental / carer’s leave. At that time the Complainant was asked by the Factory Manager if she would accept redundancy as an alternative. The Complainant declined this offer. The Complainant’s application for parental /carer’s leave was refused by the Respondent on or about 2ndJuly 2008. Instead the Factory Manager informed the Complainant that she was to be made redundant. The Complainant’s redundancy lump sum, which comprised statutory redundancy and an ex-gratia element, was calculated by reference to her earnings based on a four-day week. The Complainant received an additional amount equal to 0.5 day’s pay per year of service in respect of what was referred to as‘festival days’. She contends that in the case of others this element of the redundancy payment was calculated as 1.5 days’ pay per year of service.
The Complainant’s dismissal took effect from 26thSeptember 2008. There was some residual work, appropriate to her position, to be performed before the plant finally closed in or about February 2009. The Complainant contends that her dismissal was premature in that she could have been retained to perform this work and the decision to terminate her employment earlier was in response to her application for parental / carers leave.
The claims
Arising from the foregoing the following claims have been advanced by the Complainant: –
•She claims to have suffered discrimination in terms of pay in not being paid a bonus after 2004.
•She claims discrimination in terms of pay in having her ex-gratia redundancy payments calculated by reference to her earnings in respect of her reduced working hours’ liability rather than by reference to her contractual hours
•She claims discrimination in terms of pay in not having the ‘festival days’ element of her redundancy payment calculated at the same rate as that of others who received consideration for these days in the computation of their redundancy pay
•She claims discrimination in terms of conditions of employment and /or access to employment in being made redundant prematurely.
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Conclusion
Grounds Relied Upon
In this case the Complainant has relied,inter alia, on the disability ground in advancing her claim. In essence she claims that she was treated less favourably because she was prevented from working full-time due to her need to care for her disabled child. Thus, she claims that the less favourable treatment of which she complains was by reason of her association with her disabled daughter.
The Complainant also relied upon the family status ground. Family status is defined by s. 2 of the Act as:-
“family status” means responsibility— as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis, and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability”
It is clear that the meaning ascribed to family status for the purpose of the Act is sufficiently wide so as to encompass the Complainant’s role as a carer of her disabled child. Consequently, in so far as her complaints are grounded on her caring responsibilities for her daughter, they come within the ambit of the family status ground and it is unnecessary to consider them by reference to the disability ground.
Comparators
It is settled law that an equal pay claim must be grounded on the difference in remuneration of the Complainant relative to that of a real as opposed to a hypothetical comparator with whom he or she is engaged on like work. This was made clear by Budd J. inBrides v Minister for Agriculture[1998] 4 IR 250. In this case the Respondent contends that the Complainant has not identified such a comparator. It is clear, however, that in her claim before the Equality Tribunal the Complainant did nominate a number of comparators. Moreover, in the Court’s view, the nature of the claims is such that the requirement for a comparator can be easily satisfied.
In relation to the payment of bonus, it is clear that the Complainant is relying on the fact that the payments in issue were made to all other managers who, on that account, are potential comparators. The Complainant was paid the bonus in respect of 2003 and it can safely be assumed that she was then engaged in like work with all other managers who also received a bonus. On the uncontested evidence of the Complainant the Court is satisfied that the range of duties and responsibilities of the Complainant, and the circumstances under which they were performed, remained the same from 2002 up to the time that her employment came to an end.
The Complainant accepts that from 2004 onwards she reported to Ms Kennelly rather than to the General Manager as previously. However, a reporting relationship is not a factor to be taken into account in determining if jobs are of equal value. This Court so decided in Determination EDA0720,Health Service Executive and Twenty Seven Named Complainants. Here the Court was required to consider if female Directors of Public Health Nursing were engaged in like work with male Directors of Nursing (Mental Health). In contending that the complainants and their comparators were not engaged in like work the Respondent placed considerable emphasis on the different reporting relationships of the respective groups. The Complainants reported to the General Manager in their area whereas the Comparators reported to the Local Health Manager (LHO), which was a higher level of management. The Respondent contended that this was a significant factor indicative of the greater degree of responsibility attaching to the post of Director of Nursing (Mental Health). In rejecting that submission this Court held: –
The Court does not accept that a reporting relationship is a matter which should properly be taken into account in measuring the value of two different jobs for the purpose of applying the provision of s7(1)(c) of the Act. Reporting relationships are determined by the employer and are often reflective of the importance which the employer accords to a job. If a reporting relationship were to be regarded as a determinative factor in measuring like work it could easily be used to concealwhat is in reality a discriminatory pay arrangement, thus circumventing the protection of the Act. As was pointed out by Barron J. inC & D Food Ltd. v Cunnion[1997] 1 IR 147, the decision as to what constituted “like work” is for the Court and not the employer. If the employer’s evaluation of the work is incorrect it cannot be relied upon to avoid liability under the Act.
In relation to the claim concerning the calculation of her redundancy payments, it is clear that the same mode of calculation was used in the case of all full-time employees, namely, by reference to their earnings over a five-day week. Since all employees at the plant were made redundant it follows that this mode of calculation was applied to those who were engaged in the same work as the Complainant, those engaged in work of equal value and those whose work was of lesser value. Consequently, any or all of those employees are valid comparators for the purpose of the Complainant’s claim.
The claim arising from what was termed ‘the premature redundancy’ of the Complainant raises an issue of equal treatment. Consequently a hypothetical comparator can be relied upon. In Determination EDA1129A Worker v Two Respondents, this Court pointed out that in order to construct a hypothetical comparator the Court should establish the factual criterion for the impugned decision and consider if that criterion would have similarly been applied in the case of a person without the protected characteristic (see the observations of Lord Nicholls inShamoon v Chief Constable of the Royal Ulster Constabulary[2003] IRLR 285, paragraphs 8-12). Consequently the appropriate comparator for the purposes of this aspect of the Complainant’s claim is a hypothetical person who did not have the same family responsibilities as the Complainant and who did not apply to work reduced hours by reason of his or her family status.
For these reasons the Court is satisfied that the within claims are properly grounded by reference to an appropriate comparator.
Burden of proof
The Court must consider if the probative burden has shifted to the Respondent in accordance with s.85A (1) of the Act, which provides: –
Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.
The test for applying that provision is well settled in a line of decisions of this Court starting with the Determination inMitchell v Southern Health Board [2001] ELR 201.That test requires the Complainant to prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged that the burden of proving that there was no infringement of the principle of equal treatment passes to the Respondent. If the Complainant does not discharge the initial probative burden which he or she bears, his or her case cannot succeed.
The type or range of facts which may be relied upon by a complainant can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that, where the primary facts alleged are proved, it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish aprima faciecase. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts (See also Determination EDA0821,Kieran McCarthy v Cork City Council).
Where the probative burden passes to the Respondent it must be shown that there was no discrimination whatsoever in the sense that the protected ground relied upon was nothing more than a trivial influence in the impugned decision (Wong v Igen LtdEWCA Civ 142).
The Court must then turn to a consideration of whether, by application of those principles, the onus of proof has shifted to the Respondent in this case and, if so, has the inference of discrimination thus created been rebutted. Each of the Complainant’s claims is considered in turn.
Bonus
As already found elsewhere in this Determination the Court accepts that the Complainant was engaged in like work with other senior managers who received a bonus. The Court has also found that there was no material change in the nature of the work performed by the Complainant after 2003, when she was removed from participation in the bonus scheme. The only difference between the circumstances of the Complainant and those of the other managers who were regarded as qualified to receive a bonus, apart from any difference in reporting relationships, was that the Complainant worked a four-day week whereas the others worked a five-day week. The Court also accepts the Complainant’s evidence that she sought an explanation from Mr Heffernan for her exclusion from the bonus scheme and that none was provided.
In this case the facts relied upon by the Complainant are not consistent with a claim of direct discrimination. It is not alleged that the bonus payments ceased because of her family responsibilitiesper se. Rather, the gravamen of the Complainant’s case is that she was removed from the bonus scheme because she worked a four-day week. It is clear that this Court, as an expert tribunal, is entitled to draw on the knowledge and experience of its members in reaching conclusions of fact. That principle was enunciated by the Court of Appeal for England and Wales inLondon Underground v Edwards (No.2) [1998] IRLR 364 and by the Northern Ireland Court of Appeal inBriggs v North Eastern Education and Library Board[1990] IRLR 181. This Court adopted a similar approach inInoue v MBK Designs[2003] 14 E.L.R. 98, as did the High Court in the more recent case ofBenedict McGowan and ors v The Labour Court, Ireland and the Attorney General and Ors[2010] 21 E.L.R. 277.
Based on its own knowledge it is perfectly clear to this Court that women having the family status of the Complainant, and in particular women who are the carer of a disabled child, would find it more difficult to work full-time than either a man or a women whose family responsibilities are different. Consequently, a requirement to work full-time is a provision, criterion or practice which determines entitlement to a payment in employment. Consequently it can constitute indirect discrimination on the ground of family status if it operates so as to place persons having the same family responsibilities as the Complainant at a particular disadvantage.
InFlynn v Primark[1997] E.L.R 218, Barron J said the following (at 223): –
The principles of law established by the case law to which I have referred are not in my view in dispute between the parties. Once as between workers doing like work there is a difference in pay which prejudices significantly more women than it does men then, whatever the reason, there is aprima faciediscrimination and an onus rests on the employer to establish that this difference is not gender based but that the reasons for such difference are objectively justifiable on economic grounds.
While that case concerned an equal pay claim on gender grounds the principle enunciated in the passage quoted is of general application in cases involving any of the protected grounds under the Act.
The Court is satisfied that the primary facts surrounding this aspect of the Complainant’s case are of sufficient significance to raise an inference that the Complainant was discriminated against on grounds of her family status. Consequently, since this is a case of indirect discrimination, it is for the Respondent to objectively justify the non-payment of the bonus to the Complainant on grounds unrelated to her family status.
None of the witnesses who testified on behalf of the Respondent could give direct evidence of the reason for the Complainant’s exclusion from the bonus scheme. Mr Heffernan told the Court that he believed the reason to be the Complainant’s indirect reporting relationship to the General Manager. Mr Munnelly’s evidence was to similar effect. However, their evidence was based on discussions which they had with Mr O’Driscoll. Consequently their evidence must be regarded as hearsay. It was Mr O’Driscoll who decided to remove the Complainant from the bonus scheme. Only he could give reliable evidence as to the reason for that decision and the basis upon which it could be objectively justified. Mr O’Driscoll did not give evidence.
The decision of the UK Employment Appeals Tribunal inBarton v Investec Henderson Crosthwaite Securities LtdIRLR 332 (per Ansell J) indicates that since the facts necessary to prove an explanation for a seemingly discriminatory act would normally be in the possession of the respondent, a tribunal should expect cogent evidence to discharge the burden of proof. In this case there is no cogent or reliable evidence before the Court concerning the actual reason for the Complainant’s exclusion from the bonus scheme. Nor is there any evidence upon which it could be held that her exclusion was objectively justified on grounds unrelated to her family status as that term is statutorily defined.
Accordingly the Complainant is entitled to succeed in this aspect of her claim.”
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Outcome
For all of the reasons set out herein the Court finds as follows: –
•The Complainant was denied equal pay, on the ground of family status, in relation to bonus payments. The Act prescribes a three-year limitation period in equal pay claims. Consequently the Complainant is entitled to recover arrears of bonus payment in respect of the three years before the date on which herclaim was presented to the Equality Tribunal.
•The Complainant was not discriminated against on the ground of family status in terms of pay in the mode of calculation used by the Respondent in computing her ex-gratia redundancy lump sum.
•The Complainant was denied equal pay on the ground of family status in being paid an allowance of 0.5 day’s pay per year of service in respect of festival days rather than 1.2 days’ pay per year of service. She is entitled to recover the difference of 0.7 day’s pay per year of service by way of arrears of pay.
•The Complainant was not discriminated against in terms of access to employment in being made redundant in September 2008.
Redress
The Court directs the Respondent to pay to the Complainant:-
1. Arrears of bonus measured at 7.5% of her salary for each of the three years preceding the date on which her claim was presented to the Equality Tribunal.
2. Arrears in respect of her ex-gratia redundancy lump sum being the difference between an allowance of 0.5 day’s pay per year of service and 1.2 day’s pay per year of service, namely, 0.7 day’s pay per year of service.
Section 82(5) of the Act allows for the awarding of interest on compensatory amounts where the discrimination found arises on the ground of gender. As the Court has not found that the Complainant was discriminated against on the ground of gender the question of awarding interest does not arise.
The amounts referred to at 1 and 2 above related to remuneration and are liable to income tax.
Coleman
[2008] ICR 1128, [2008] All ER (EC) 1105, [2008] 3 CMLR 27, [2008] CEC 986,
“II Analysis
The four questions referred to the Court by the Employment Tribunal boil down to a single issue of law: does the Directive protect non-disabled people who, in the context of their employment, suffer direct discrimination and/or harassment because they are associated with a disabled person?
The Directive was adopted under Article 13 EC which was added to the EC Treaty by the Treaty of Amsterdam and reads as follows: ‘Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation’. The first thing to note about Article 13 EC is that it singles out specific grounds of discrimination which it treats as suspect grounds or, to borrow a term from US constitutional law, as ‘suspect classifications’, (3) and makes them the target of Community anti-discrimination legislation. Under this broad provision legislation may be brought with the aim of combating discrimination on those enumerated grounds. While the Council enjoys considerable discretion to adopt measures tailored to particular circumstances and social contexts, Article 13 EC cannot be interpreted so as to allow the adoption of legislation that would be inconsistent with its aims and spirit and limit the protection that the drafters of the Treaty intended to offer. As a consequence, legislation adopted on the basis of Article 13 EC must be interpreted in the light of the goals pursued by Article 13 itself. (4)
Article 13 EC is an expression of the commitment of the Community legal order to the principle of equal treatment and non-discrimination. Thus, any interpretation of both that article and any directive adopted under this legal basis must be undertaken against the background of the Court’s case-law on these principles. (5) The Directive itself states in Article 1 that its purpose is ‘to lay down a general framework for combating discrimination … with a view to putting into effect in the Member States the principle of equal treatment’ (my emphasis). The Court’s case-law is clear as regards the role of equal treatment and non-discrimination in the Community legal order. Equality is not merely a political ideal and aspiration but one of the fundamental principles of Community law. (6) As the Court held in Mangold the Directive constitutes a practical aspect of the principle of equality. (7) In order to determine what equality requires in any given case it is useful to recall the values underlying equality. These are human dignity and personal autonomy.
At its bare minimum, human dignity entails the recognition of the equal worth of every individual. One’s life is valuable by virtue of the mere fact that one is human, and no life is more or less valuable than another. As Ronald Dworkin has recently reminded us, even when we disagree deeply about issues of political morality, the structure of political institutions and the functioning of our democratic states we nevertheless continue to share a commitment to this fundamental principle. (8) Therefore, individuals and political institutions must not act in a way that denies the intrinsic importance of every human life. A relevant, but different, value is that of personal autonomy. It dictates that individuals should be able to design and conduct the course of their lives through a succession of choices among different valuable options. (9) The exercise of autonomy presupposes that people are given a range of valuable options from which to choose. When we act as autonomous agents making decisions about the way we want our life to develop our ‘personal integrity and sense of dignity and self-respect are made concrete’. (10)
The aim of Article 13 EC and of the Directive is to protect the dignity and autonomy of persons belonging to those suspect classifications. The most obvious way in which such a person’s dignity and autonomy may be affected is when one is directly targeted because one has a suspect characteristic. Treating someone less well on the basis of reasons such as religious belief, age, disability and sexual orientation undermines this special and unique value that people have by virtue of being human. Recognising the equal worth of every human being means that we should be blind to considerations of this type when we impose a burden on someone or deprive someone of a benefit. Put differently, these are characteristics which should not play any role in any assessment as to whether it is right or not to treat someone less favourably.
Similarly, a commitment to autonomy means that people must not be deprived of valuable options in areas of fundamental importance for their lives by reference to suspect classifications. Access to employment and professional development are of fundamental significance for every individual, not merely as a means of earning one’s living but also as an important way of self-fulfilment and realisation of one’s potential. The discriminator who discriminates against an individual belonging to a suspect classification unjustly deprives her of valuable options. As a consequence, that person’s ability to lead an autonomous life is seriously compromised since an important aspect of her life is shaped not by her own choices but by the prejudice of someone else. By treating people belonging to these groups less well because of their characteristic, the discriminator prevents them from exercising their autonomy. At this point, it is fair and reasonable for anti-discrimination law to intervene. In essence, by valuing equality and committing ourselves to realising equality through the law, we aim at sustaining for every person the conditions for an autonomous life.
Yet, directly targeting a person who has a particular characteristic is not the only way of discriminating against him or her; there are also other, more subtle and less obvious ways of doing so. One way of undermining the dignity and autonomy of people who belong to a certain group is to target not them, but third persons who are closely associated with them and do not themselves belong to the group. A robust conception of equality entails that these subtler forms of discrimination should also be caught by anti-discrimination legislation, as they, too, affect the persons belonging to suspect classifications.
Indeed, the dignity of the person with a suspect characteristic is affected as much by being directly discriminated against as it is by seeing someone else suffer discrimination merely by virtue of being associated with him. In this way, the person who is the immediate victim of discrimination not only suffers a wrong himself, but also becomes the means through which the dignity of the person belonging to a suspect classification is undermined.
Furthermore, this subtler form of discrimination undermines the ability of persons who have a suspect characteristic to exercise their autonomy. For instance, the autonomy of members of a religious group may be affected (for example, as to whom to marry or where to live) if they know that the person they will marry is likely to suffer discrimination because of the religious affiliation of his spouse. The same can happen, albeit to a lesser extent, with individuals who are disabled. People belonging to certain groups are often more vulnerable than the average person, so they have come to rely on individuals with whom they are closely associated for help in their effort to lead a life according to the fundamental choices they have made. When the discriminator deprives an individual of valuable options in areas which are of fundamental importance to our lives because that individual is associated with a person having a suspect characteristic then it also deprives that person of valuable options and prevents him from exercising his autonomy. Put differently, the person who belongs to the suspect classification is excluded from a range of possibilities that would otherwise have been open to him.
How the Directive functions
The Community legislature adopted the Directive in order to protect, in the field of employment and occupation, people belonging to suspect classifications and to ensure that their dignity and autonomy is not compromised either by obvious and immediate or subtle and less obvious discrimination. An indication of how this is to be achieved is already apparent in Article 1 of the Directive, which reads: ‘The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment’ (my emphasis).
The important words here are ‘on the grounds of’. It is a familiar proposition of both law and moral philosophy that not all discrimination is wrong. In the context of employment, for instance, it is perfectly acceptable for an employer to hire a candidate who is responsible, trustworthy and polite and exclude candidates who are irresponsible, untrustworthy and rude. Conversely, we think it is wrong to reject someone on the basis of his or her race or religion, and in most legal systems the law intervenes to prevent such discrimination from taking place. What determines whether the employer’s conduct is acceptable or not, and triggers the law’s intervention, is the ground of discrimination relied on by the employer in each case.
The fact that the wrongness of discrimination depends on the grounds upon which it is based is reflected in the way relevant legislation is structured. Virtually all anti-discrimination statutes prohibit discrimination on a number of specified grounds. This is the strategy followed by the Community legislature in the Directive which outlaws discrimination based on religion or belief, disability, age and sexual orientation. The main duty imposed by anti-discrimination legislation, such as the Directive, is to treat people in a certain way which is comparable to how others are treated. (11) By adopting the Directive the Council has made it clear that it is wrongful for an employer to rely on any of these grounds in order to treat an employee less well than his or her colleagues. As soon as we have ascertained that the basis for the employer’s conduct is one of the prohibited grounds then we enter the realm of unlawful discrimination.
In the sense described above, the Directive performs an exclusionary function: it excludes religious belief, age, disability and sexual orientation from the range of permissible reasons an employer may legitimately rely upon in order to treat one employee less favourably than another. In other words, after the coming into force of the Directive it is no longer permissible for these considerations to figure in the employer’s reasoning when she decides to treat an employee less favourably.
The Directive prohibits direct discrimination, (12) harassment (13) and indirect discrimination. (14) The distinguishing feature of direct discrimination and harassment is that they bear a necessary relationship to a particular suspect classification. The discriminator relies on a suspect classification in order to act in a certain way. The classification is not a mere contingency but serves as an essential premise of his reasoning. An employer’s reliance on those suspect grounds is seen by the Community legal order as an evil which must be eradicated. Therefore, the Directive prohibits the use of those classifications as grounds upon which an employer’s reasoning may be based. By contrast, in indirect discrimination cases the intentions of the employer and the reasons he has to act or not to act are irrelevant. In fact, this is the whole point of the prohibition of indirect discrimination: even neutral, innocent or good faith measures and policies adopted with no discriminatory intent whatsoever will be caught if their impact on persons who have a particular characteristic is greater than their impact on other persons. (15) It is this ‘disparate impact’ of such measures on certain people that is the target of indirect discrimination legislation. The prohibition of such discrimination ties in with the obligation of employers to accommodate those groups by adopting measures and designing their policies in a way that does not impose a burden on them which is excessive compared with that imposed on other people. (16) In this way, while the prohibition of direct discrimination and harassment operates as an exclusionary mechanism (by excluding from an employer’s reasoning reliance on certain grounds) the prohibition of indirect discrimination operates as an inclusionary mechanism (by obliging employers to take into account and accommodate the needs of individuals with certain characteristics). It is for this reason that even if we were to accept the argument of the United Kingdom Government that discrimination by association is clearly outside the scope of the prohibition of indirect discrimination that does not mean in any way that it also falls outside the scope of the prohibition of direct discrimination and harassment. On the contrary, including discrimination by association in the scope of the prohibition of direct discrimination and harassment is the natural consequence of the exclusionary mechanism through which the prohibition of this type of discrimination operates.
Ms Coleman’s case raises an issue of direct discrimination. As the order for reference makes clear, she is not complaining of the impact a neutral measure had on her as the mother and carer of a disabled child, but claims that she was singled out and targeted by her employer precisely because of her disabled son. Therefore, the issue for the Court is whether direct discrimination by association is prohibited by the Directive.
It is clear that had the claimant been disabled herself the Directive would have been applicable. In the present case, though, the allegation is that it was the disability of the claimant’s son which triggered the discriminatory treatment. Thus, the person who is disabled and the person who is the obvious victim or the object of the discriminatory act are not the same. Does this render the Directive inapplicable? Given my analysis up to this point, I think it does not.
As stated, the effect of the Directive is that it is impermissible for an employer to rely on religion, age, disability and sexual orientation in order to treat some employees less well than others. To do so would amount to subjecting these individuals to unjust treatment and failing to respect their dignity and autonomy. This fact does not change in cases where the employee who is the object of discrimination is not disabled herself. The ground which serves as the basis of the discrimination she suffers continues to be disability. The Directive operates at the level ofgrounds of discrimination. The wrong that it was intended to remedy is the use of certain characteristics as grounds to treat some employees less well than others; what it does is to remove religion, age, disability and sexual orientation completely from the range of grounds an employer may legitimately use to treat some people less well. Put differently, the Directive does not allow the hostility an employer may have against people belonging to the enumerated suspect classifications to function as the basis for any kind of less favourable treatment in the context of employment and occupation. As I have explained, this hostility may be expressed in an overt manner by targeting individuals who themselves have certain characteristics, or in a more subtle and covert manner by targeting those who are associated with the individuals having the characteristics. In the former case, we think that such conduct is wrong and must be prohibited; the latter is exactly the same in every material aspect. In both cases, it is the hostility of the employer towards elderly, disabled or homosexual people or people of a certain religious persuasion that leads him to treat some employees less well.
Therefore, if someone is the object of discrimination because of any one of the characteristics listed in Article 1 then she can avail herself of the protection of the Directive even if she does not posses one of them herself. It is not necessary for someone who is the object of discrimination to have been mistreated on account of ‘her disability’. It is enough if she was mistreated on account of ‘disability’. Thus, one can be a victim of unlawful discrimination on the ground of disability under the Directive without being disabled oneself; what is important is that that disability in this case the disability of Ms Coleman’s son was used as a reason to treat her less well. The Directive does not come into play only when the claimant is disabled herself but every time there is an instance of less favourable treatment because of disability. Therefore, if Ms Coleman can prove that she was treated less favourably because of her son’s disability she should be able to rely on the Directive.
Finally, the United Kingdom Government has argued that the Directive was adopted with a view only to the setting of minimum standards. The fact that the Council was acting in an area where competence remains largely within the power of the Member States would, according to that Government, support such a view. As a consequence, it is an issue for the Member States to decide whether or not to prohibit discrimination by association in the field of employment and occupation. I do not agree. First, the fact that an area is not fully harmonised or that the Community has only limited competence to legislate in no way implies that the intervention of Community law, whatever this may be, must take place at the lowest level. In other words, the fact that the Community has a limited competence in the field of fundamental rights does not mean that when it decides to exercise that competence it can provide only minimum standards of fundamental rights protection. Second, there is nothing in the Directive or its recitals indicating that such was the intention of the Council. On the contrary, recital 6, for instance, refers to ‘the importance of combating every form of discrimination’ (my emphasis). (17)
III Conclusion
For the reasons given above, I think that the Court should answer the question of the Employment Tribunal as follows:
Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation protects people who, although not themselves disabled, suffer direct discrimination and/or harassment in the field of employment and occupation because they are associated with a disabled person.”
King v The Great Britain-China Centre
[1991] EWCA Civ 16 [1992] ICR 516
NEILL LJ
“This is an appeal by Miss Karen Lily King from the order of the Employment Appeal Tribunal dated 5th February 1990 allowing an appeal by The Great Britain-China Centre (“the Centre”) from the decision of an industrial tribunal dated 25th August 1988 whereby the industrial tribunal held by a majority that the Centre had unlawfully discriminated against Miss King on the ground of her race. The case for Miss King, who is Chinese, was that she had been the subject of direct racial discrimination contrary to section l(l)(a) and section 4(l)(a) of the Race Relations Act 1976 in that when she had applied for the post of deputy Director of the Centre she had not been placed on the short list of applicants for the post.
……
It was accepted on behalf of Miss King that the burden of proving racial discrimination lay on her. This was the legal burden of proof. But it was submitted that the majority of the industrial tribunal were correct in concluding that in the light of the proved facts the evidential burden of disproving discrimination shifted to the Centre. Counsel relied on the following facts and matters which, it was argued, the majority found to be proved:
(a) that Miss King was well qualified but had failed even to be short-listed;
(b) that those short-listed were all white whereas Miss King was ethnic Chinese;
(c) that the Centre had never had an ethnic Chinese employee;
(d) that the non-discriminatory grounds for short-listing which had been put forward by the Centre did not stand scrutiny; and
(e) that the inference of discrimination which the majority were prepared to draw from the evidence was not displaced by the explanations that had been given on behalf of the Centre but was indeed in part confirmed by these explanations.
It was submitted that where the evidence establishes that a complainant has been treated less favourably than others of a different race the industrial tribunal will be entitled to infer that the racial difference was the ground for the less favourable treatment unless the evidence taken as a whole affords a credible alternative explanation. In these circumstances, it was said, the majority were correct in law in their approach to the case. Though they had not concerned themselves in terms with any questions about a shifting burden of proof they in effect found that Miss King had proved her case because the Centre had not discharged the evidential burden which the facts imposed on them. The Centre had not provided a satisfactory explanation for what looked at first sight as a case of unlawful discrimination.
On behalf of the Centre, on the other hand, it was submitted that the Employment Appeal Tribunal were correct in holding that the industrial tribunal had fallen into error. The burden of proving unlawful discrimination rested throughout on the complainant. All the previous authorities on racial discrimination showed that the question of the employer’s explanation only became relevant when the primary facts pointed to unlawful discrimination. In these cases the successful complainants were able to demonstrate that the persons appointed were less well qualified than they were. One could not draw an inference of unlawful discrimination where the primary facts were neutral.
The authorities
In the course of the hearing the court was referred to a number of authorities. It will be convenient to consider them in chronological order. I propose to start with Khanna v. Ministry of Defence [1981] ICR 653, where the applicant, who had been born in India, had made twenty-two unsuccessful applications for promotion. On the last occasion he brought proceedings alleging unlawful racial discrimination and relying on the fact that the person selected had less experience than he had. The judgment of the Employment Appeal Tribunal was delivered by Browne-Wilkinson J. At p.658 the President suggested that in future industrial tribunals mighft find it easier to forget about the rather nebulous concept of the “shift in the evidential burden”. A little later he continued:
“In this case the industrial tribunal would, we suspect, have found the case rather more straightforward if, looking at all the evidence as a whole, they had simply decided whether the complaint had been established. No useful purpose is served by stopping to reach a conclusion on half the evidence. The right course in this case was for the industrial tribunal to take into account the fact that direct evidence of discrimination is seldom going to be available and that, accordingly, in these cases the affirmative evidence of discrimination will normally consist of inferences to be drawn from the primary facts. If the primary facts indicate that there has been discrimination of some kind, the employer is called on to give an explanation and, failing clear and specific explanation being given by the employer to the satisfaction of the industrial tribunal, an inference of unlawful discrimination from the primary facts will means the complaint succeeds: …. Those propositions are, we think, most easily understood if concepts of shifting evidential burdens are avoided.
So, in this case, the industrial tribunal has drawn the inference of possible discrimination from the fact that there was no obvious reason why the applicant should not have got the job: ….
To decide that there has been discrimination in the face of sworn evidence that there was no such discrimination is unpalatable: equally, racial discrimination does undoubtedly exist, and it is highly improbable that a person who has discriminated is going to admit the fact, quite possibly even to himself. The judicial function, however unpalatable, is to resolve such conflicts by a decision if possible.”
Later the same year in Chattopadhyay v. Headmaster of Holloway School [1982] ICR 132 the Employment Appeal Tribunal considered the case of an Indian teacher who had applied unsuccessfully for the post of head of history at Holloway School. At p.137 Browne-Wilkinson J. referred to the rather special nature of proceedings involving allegations of discrimination contrary to the 1976 Act and continued:
“As has been pointed out many times, a person complaining that he has been unlawfully discriminated against faces great difficulties. There is normally not available to him any evidence of overtly racial discriminatory words or actions used by the respondent. All that the applicant can do is to point to certain facts which, if unexplained, are consistent with his having been treated less favourably than others on racial grounds. In the majority of cases it is only the respondents and their witnesses who are able to say whether in fact the allegedly discriminatory act was motivated by racial discrimination or by other, perfectly innocent, motivations. It is for this reason that the law has been established that if an applicant shows that he has been treated less favourably than others in circumstances which are consistent with that treatment being based on racial grounds, the industrial tribunal should draw an inference that such treatment was on racial grounds, unless the respondent can satisfy the industrial tribunal that there is an innocent explanation.”
The decision in Khanna (supra) was commented upon in two later cases in the Court of Appeal. In Morris v. London Iron and Steel Co Ltd. [1987] ICR 855 May LJ said that he did not find the case of Khanna “an easy or satisfactory one” (863E) or “entirely satisfactory” (864A). He reiterated that the burden of proof lay on the complainant to make out a case of unlawful discrimination.
A year later in North West Thames Regional Health Authority v. Noone [1988] ICR 813 May LJ at p.822 repeated his comment that he did not find the decision in Khanna “altogether satisfactory”. He then continued as follows:
“In these cases of alleged racial discrimination it is always for the complainant to make out his or her case. ,; It is not often that there is direct evidence of racial discrimination, and these complaints more often than not have to be dealt with on the basis of what are the proper inferences to be drawn from the primary facts. For myself I would have thought that it was almost common sense that, if there is a finding of discrimination and of difference of race and then an adequate or unsatisfactory explanation by the employer for the discrimination, usually the legitimate inference will be that the discrimination was on racial grounds.”
This is an important passage and it is to be noted that it was set out in full in paragraph 8 of the industrial tribunal’s Reasons in the instant case. But it is also relevant to observe:
(a) that in Noone (supra) at p.831 Balcombe LJ referred with apparent approval to the passages in the judgments of Browne-Wilkinson J in Khanna and Chattopadhyay which
I have already set out; and
(b) that in West Midlands Transport v. Singh [1988] ICR 614 Balcombe LJ, delivering the judgment of the Court of Appeal in a case involving an application for discovery, cited at p.618 the same passage in Browne-Wilkinson’s J judgment in Chattopadhyay in support of the proposition that “cases based on racial, or sexual, discrimination have a number of special features”.
In the course of the argument we were referred to other recent cases including Barking and Dagenham Council v. Camara [1988] ICR 865; Baker v. Cornwall County Council [1990] ICR 452 and the valuable judgment of Wood J in the Employment Appeal Tribunal in British Gas Plc v. Sharma [1991] ICR 19.
From these several authorities it is possible, I think, to extract the following principles and guidance:
(1) It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail.
(2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption “he or she would not have fitted in”.
(3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal- These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 65(2)(b) of the 1976 Act from an evasive or equivocal reply to a questionnaire.
(4) Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but, as May LJ put it in Noone,
“almost common sense”.
(5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case.
I return to the facts of the present case. Miss King is an ethnic Chinese. So were four other of the thirty candidates. Eight candidates were called for interview. None of these eight candidates was an ethnic Chinese. The majority of the tribunal were satisfied that Miss King’s paper qualifications fulfilled the requirements set out in the advertisement and in the job specification, and that she had been treated less favourably than the candidates called for interview, particularly candidates 5 and 7. The majority were also impressed by the fact that no ethnic Chinese had ever been employed by the Centre.
In these circumstances the tribunal were clearly entitled to look to the Centre for an explanation of the fact that Miss King was not even called for an interview. The majority, however, found the explanation unsatisfactory and were also dissatisfied with the reply to the questionnaire. They therefore concluded that Miss King had made out her case.
It is not now said that the conclusion of the majority was perverse. But it is submitted that they misdirected themselves, the submission being based on the language used in the Reasons and in particular in the underlined passages. I have considered this submission with great care and I have taken account of the fact that the submission was accepted by the President of the Employment Appeal Tribunal and by two very experienced lay members of that Tribunal. In the end I am quite satisfied that reading the relevant parts of the Reasons as a whole the majority’s decision was not flawed by an error of law. They clearly had in mind that it was for Miss King to make out her case: see the reference to Noone in paragraph 8 of the Reasons. They were entitled to look to the Centre for an explanation of the fact that Miss King was not selected for interview. They were not satisfied with the explanation and they were entitled to say so. It was therefore legitimate for them to draw on inference that the discrimination was on racial grounds. This process of reasoning did not involve a reversal of the burden of proof but merely a proper balancing of the factors which could be placed in the scales for and against a finding of unlawful discrimination.
I would therefore allow the appeal and restore the order of the industrial tribunal”
Teresa Mitchell v. Southern Health Board
AEE/99/8
Labour Court
Facts
The claimant, a locum physician employed by the respondent since 1990, applied for a full-time position in 1994. She was unsuccessful and a male candidate was appointed to the post. She brought a claim to the Equality Officer who found that the respondent did not discriminate against the appellant contrary to the provisions of the Employment Equality Act 1977 . The appellant appealed that recommendation to the Labour Court. In her submissions, which were denied by the respondent, the claimant alleged, inter alia , that she had greater experience than the successful candidate, was better qualified than the successful candidate, that discriminatory remarks were made prior to the interview and that her previous experience and academic achievements were ignored at the interview. As a preliminary point, the Labour Court had to determine whether it had jurisdiction to proceed with the substantive complaint or refer the matter back to an Equality Officer who had initially determined that he had no jurisdiction to investigate the substantive complaint according to section 12 of the 1977 Act since the disputed appointment had been made by the Local Appointments Commission.
Determined in dismissing the appeal:
(1) The Court has no statutory authority to refer a complaint back to an Equality Officer when an Equality Officer had made a prior recommendation to the Court and had previously determined that he had no jurisdiction to investigate the substantive complaint under section 12 of the 1977 Act. Accordingly, the Court would proceed to investigate the substantive complaint.
(2) A claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.
(3) Only if these primary facts are established to the satisfaction of the Court, and they are regarded as being of sufficient significance to raise a presumption of discrimination, does the onus shift to the respondent to prove that there was no infringement of the principle of equal treatment. Wallace v. South Eastern Education and Library Board [1980] NI 38 ; [1980] IRLR 193 followed .
(4) Gender imbalance in an interview board, although highly undesirable, does not, in itself, lead to a prima facie finding of discrimination in every case. Nonetheless, such a practice is potentially discriminatory and can form part of the evidential chain on which a claim of discrimination could be made out. Gleeson v. Rotunda Hospital [2000] ELR 206 considered .
(5) The appellant had not discharged the evidential burden which she carried and the appeal should accordingly be dismissed.
Labour Court determination:
Background
…….
Onus of Proof
Counsel for both parties made submissions to the Court on how the evidential burden should be applied in this case. Counsel for the appellant submitted that, once the appellant makes out a prima facie case, the onus falls on the respondent to rebut the presumption of discrimination. He relied on the decision of the Northern Ireland Court of Appeal in Wallace v. South Eastern Education and Library Board [1980] NI 38 ; [1980] IRLR 193 .
Counsel for the Health Board submitted that the onus is on the claimant to prove, on the balance of probabilities, that she did suffer discrimination.
Council Directive 97/80 of 15 December 1997 , on the Burden of Proof in Cases of Discrimination Based on Sex, sets out the procedural rules to be followed in applying the evidential burden in discrimination cases. Article 4.1 of the Directive provides that, where a plaintiff in discrimination proceedings establishes facts from which it may be presumed that there has been discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.
This Directive has not yet been transposed into Irish law. The date for implementation is 1 January 2001, and it cannot have direct effect before that date. However, in the preamble to the Directive, it is expressly stated that its provisions are derived from the case law of the ECJ. It would appear, therefore, that the aim of the Directive is to formalise in legislation the case law of the ECJ as it presently stands, rather than to introduce a new procedural requirement.
With regard to the Wallace case, this decision of the Northern Ireland Court of Appeal is of persuasive rather than binding authority. It was, however, fol lowed by this Court in Gleeson v. Rotunda Hospital and Mater Misericordiae Hospital [2000] ELR 206 .
Wallace is authority for the proposition that, where it is established that a person suffered discrimination in the filling of a post, the onus shifts to the employer to establish that the discrimination did not arise from the gender of the unsuccessful candidate. To that extent, it is consistent with Article 4 of the Onus of Proof Directive and the case law of the ECJ on which it is based.
On that basis, the Court accepts that the principles set out in Wallace and Article 4 of the Directive provide the appropriate procedural rule to be applied in the present case.
It is necessary, however, to consider the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out. The first requirement of Article 4 of the Directive is that the claimant must ‘establish facts’ from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.
It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment.
Applied to the present case, this approach means that the appellant must first prove as a fact one or more of the assertions on which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the appellant succeeds in discharging that evidential burden. If she does, the respondent must prove that she was not discriminated against on grounds of her sex. If she does not, her case cannot succeed.
……
Conclusions of the Court
The onus of proving the factual basis on which unlawful discrimination may be presumed rests with the appellant.
The Court found the appellant to be an impressive witness. She appeared to have a clear recollection of the disputed events to which she averred. She was also firm in her opinion as to the superiority of her own qualifications and experience relative to that of the successful candidate. These recollections and opinions were, however, unsupported by any evidence beyond that of the appellant herself. They were also hotly contradicted by equally impressive witnesses called by the respondent.
The Court fully accepts that the appellant had provided five years satisfactory service as a locum in the disputed post. The Court also accepts that the appellant might reasonably have expected that her past service and clinical experience would have been a decisive factor in her favour. However, in the Courts view, these considerations could not of themselves establish that the, selection made was so irrational or unfair as to raise a presumption of unlawful discrimination.
Taking the evidence as a whole, the Court has concluded, with some hesitation, that the appellant has not discharged the evidential burden which she carries. Accordingly, her claim cannot succeed.
There is, however, one further aspect of this case on which the court considers it appropriate to comment. The interview board established by the Local Appointments Commission comprised five members, all of whom were men. There was no evidence to indicate that the Commissioners made any effort to secure the services of a suitably qualified woman to serve on the board.
Relying on the determination of this Court in the Gleeson case, counsel for the appellant submitted that such a gender imbalance in the composition of the interview board is sufficient to establish a prima facie case of discrimination. The relevant statement by the Court in Gleeson must, however, be read in context. In that case, the Court found five instances of unfairness in the selection process, the cumulative effect of which resulted in a prima facie finding of discrimination. The composition of the board was but one of these instances.
The Court considers it highly undesirable to constitute an interview board made up entirely of men. This is particularly the case where, as in the medical profession, there is a dominance of men at the most senior professional level. Gleeson cannot be regarded as authority for the proposition that gender imbalance in an interview board must, in itself, lead to a prima facie finding of discrimination in every case. Nonetheless, the Court considers that such a practice is potentially discriminatory and can form part of the evidential chain on which a claim of discrimination could be made out.
The Court would strongly urge all appropriate parties to have full regard to the now accepted need to ensure gender balance at all levels in the process of selection for appointment.
Determination
It is the determination of the Court that the complaint before it is not well founded, and that the appellant did not suffer discrimination within the meaning of section 2(a) of the Employment Equality Act 1977 . The complaint herein is dismissed.”
Strathclyde Regional Council v. Zafar
[1997] UKHL 54 [1998] ICR 120, [1997] WLR 1659
HOUSE OF LORDS LORD BROWNE-WILKINSON
“ Claims brought under the Act of 1976 and the Sex Discrimination Act 1975 present special problems of proof for complainants since those who discriminate on the grounds of race or gender do not in general advertise their prejudices: indeed they may not even be aware of them. Over the years since 1975 the courts have sought to give guidance to Industrial Tribunals as to how inferences of fact can properly be drawn in this context. The best guidance is that given by Neill L.J. in King [1991] IRLR 513 at 518. After reviewing the relevant authorities, he said this:
“From these several authorities it is possible, I think, to extract the following principles and guidance:
(1) It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail.
(2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers would be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption [that] ‘he or she would not have fitted in.’
(3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 65(2)(b) of the Act of 1976 from an evasive or equivocal reply to a questionnaire.
(4) Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the Tribunal will look to the employer for an explanation. If no explanation is then put forward or if the Tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the Tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but, as May L.J. put it in Noone, ‘almost common sense.’
(5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the Tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case.”
In my judgment that is the guidance which should in future be applied in these cases. In particular, certain remarks of mine in the Employment Appeal Tribunal in Khanna v. Ministry of Defence [1981] I.R.L.R. 331 and Chattopadhyay (supra) to the effect that such inference “should” be drawn put the matter too high, are inconsistent with later Court of Appeal authority and should not be followed.
For these reasons which are the same as those of the Second Division I would dismiss this appeal.”
Barton v. Investec Henderson Crosthwaite Securities Ltd
[2003] ICR 1205, [2003] IRLR 332
Ansell J.
“Proof of discrimination – burden of proof
The Courts have always acknowledged that it was rare for an applicant complaining of discrimination to have evidence of overtly discriminatory words or actions, therefore the affirmative evidence of discrimination will normally consist of inferences to be drawn from the primary facts. Having established those inferences, a concept of a shifting burden began to be developed whereby the employer was then called upon to give an explanation so as to negative those inferences. In Khanna -v-Ministry of Defence [1981] ICR 653 the Employment Appeal Tribunal (Mr Justice Browne-Wilkinson presiding) dealt with these evidential problems in the following way at 658F:
“In the future, we think industrial tribunals may find it easier to forget about the rather nebulous concept of ‘the shift in the evidential burden’ …..
In this case, the Industrial Tribunal would, we suspect, have found the case rather more straightforward if, looking at all the evidence as a whole, they had simply decided whether the complaint had been established. No useful purpose is served by stopping to reach a conclusion on half the evidence. The right course in this case was for the Industrial Tribunal to take into account the fact that direct evidence of discrimination was seldom going to be available and that, accordingly, in these cases the affirmative evidence of discrimination would normally consist of inferences to be drawn from the primary facts. If the primary facts indicate that there has been discrimination of some kind, the employer is called upon to give an explanation and, failing clear and specific explanation being given by the employer to satisfaction of the Industrial Tribunal, an inference of unlawful discrimination from the primary facts will mean the complaint succeeds…….”.
Later, in the same year in Chattopadhyay -v- Headmaster of Holloway School [1982] ICR 132 Mr Justice Browne-Wilkinson repeated the concept that he had outlined in Khanna at 137B:
“It is for this reason the law has been established that if an applicant shows that he has been treated less favourably than others in circumstances which are consistent with that treatment being based on racial grounds, the industrial tribunal should draw an inference that such treatment was on racial grounds, unless the respondent could satisfy the industrial tribunal that there is an innocent explanation…….”
In two subsequent cases in the Court of Appeal May L J expressed a degree of dissatisfaction with the passages in Khanna see Morris -v London Iron and Steel Company Ltd [1987] ICR 855 and North West Thames Regional Health Authority -v- Noone [1988] ICR 813. Eventually clarification was sought and obtained from the Court of Appeal in the case of King -v- GB China Centre [1992] ICR 516 and the frequently quoted passage of Neill LJ at 528F:
“From these several authorities it is possible, I think, to extract the following principles and guidance. (1) It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail. (2) It is important to bear in mind that it is unusual to find direct evidence or racial discrimination. Few employers will be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on the assumption that “he or she would not have fitted in”. (3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 65(2)(b) of the Act of 1976 from an evasive or equivocal reply to a questionnaire. (4) Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but, as May LJ put it in North West Thames Regional Health Authority -v- Noone [1988] ICR 813, 822, “almost common sense”. (5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case.”
This passage was approved by the House of Lords in Glasgow City Council -v- Zafar [1988] ICR 120.
…………….
…….
We therefore consider it necessary to set out fresh guidance in the light of the statutory changes:
(1) Pursuant to section 63A of the Sex Discrimination Act 1975, it is for the Applicant who complains of sex discrimination to prove on the balance of probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the Respondents have committed an act of discrimination against the Applicant which is unlawful by virtue of Part 2 or which by virtue of section 41 or 42 SDA is to be treated as having been committed against the Applicant. These are referred to below as “such facts”
(2) If the Applicant does not prove such facts he or she will fail.
(3) It is important to bear in mind in deciding whether the Applicant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that “he or she would not have fitted in”.
(4) In deciding whether the Applicant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the Tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal.
(5) It is important to note the word is “could”. At this stage the Tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a Tribunal is looking at the primary facts proved by the Applicant to see what inferences of secondary fact could be drawn from them.
(6) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 74(2)(b) of the Sex Discrimination Act from an evasive or equivocal reply to a questionnaire or any other questions that fall within section 74(2) of the Sex Discrimination Act see Hinks -v- Riva Systems EAT/501/96.
(7) Likewise, the Tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining such facts pursuant to section 56A(10) SDA. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.
(8) Where the applicant has proved facts from which inferences could be drawn that the Respondents have treated the Applicant less favourably on the grounds of sex, then the burden of proof moves to the respondent.
(9) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed that act.
(10) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since “no discrimination whatsoever” is compatible with the Burden of Proof Directive.
(11) That requires a Tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not any part of the reasons for the treatment in question.
(12) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a Tribunal would normally expect cogent evidence to discharge that burden of proof. In particular the Tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.
Igen Ltd & Ors v Wong
[2005] EWCA Civ 142 [2005] IRLR 258, [2005] ICR 931, [2005] 3 All ER 812, [2005] EWCA Civ 142
Gibson LJ
“Annex
(1) Pursuant to section 63A of the SDA, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities 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 claimant which is unlawful by virtue of Part II or which by virtue of s. 41 or s. 42 of the SDA is to be treated as having been committed against the claimant. These are referred to below as “such facts”.
(2) If the claimant does not prove such facts he or she will fail.
(3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that “he or she would not have fitted in”.
(4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.
(5) It is important to note the word “could” in s. 63A(2). At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.
(6) 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.
(7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 74(2)(b) of the SDA from an evasive or equivocal reply to a questionnaire or any other questions that fall within section 74(2) of the SDA.
(8) Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining, such facts pursuant to section 56A(10) of the SDA. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.
(9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent.
(10) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.
(11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since “no discrimination whatsoever” is compatible with the Burden of Proof Directive.
(12) That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.
(13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.”