Wheeler & Anor v Durham County Council

In a discrimination claim arising from a selection process, procedural irregularities or unequal treatment do not automatically establish unlawful discrimination. The tribunal must apply the statutory comparison and decide, on the balance of probabilities, whether the less favourable treatment was on the prohibited ground. A specific explanation is required only where the facts have a sufficient nexus with the alleged discrimination and readily support an inference of it. An employment tribunal need not investigate every evidential detail, provided it resolves the essential factual issues and explains its conclusion. Honest judgments about candidates’ management ability or confidence do not, without more, require an inference of sex discrimination.

Two female architects challenged the selection of a younger male candidate for a section-head post during a local-government reorganisation. An Employment Tribunal, after an 11-day hearing, dismissed their claims under sections 1(1) and 6 of the Sex Discrimination Act 1975.

The Employment Appeal Tribunal held that the tribunal had erred in law by failing to require satisfactory explanations for events in the selection process, and remitted the claims for rehearing before a different tribunal. The Council appealed to the Court of Appeal. The central issue was whether the Employment Tribunal had lawfully assessed the evidence and was required to analyse and obtain explanations for every alleged irregularity.

Appeal allowed unanimously. The Employment Appeal Tribunal had erred in setting aside the Employment Tribunal’s decision. The original tribunal had applied the correct statutory test and was entitled to dismiss the claims.

1. The applicable principles were those stated in King v The Great Britain China Centre [1991] IRLR 513 and approved in Zafar v Glasgow City Council [1998] IRLR 36. The applicants bore the burden of proving, on the balance of probabilities, that they had been treated less favourably than a man in the same or relevantly similar circumstances and that the treatment was on the ground of sex.
2. The absence of direct evidence did not prevent an inference of discrimination. However, an employer is not invariably required to explain every deviation from ordinary procedure or every difference in treatment. There must be a nexus between the fact relied upon and the alleged discrimination before a specific explanation is required. That is a question of fact and degree.
3. The Employment Tribunal had considered the individual complaints, heard evidence from the relevant decision-makers, and made a permissible overall assessment. It was not required to investigate why the successful candidate’s interviews lasted longer, or why questions differed slightly, where those matters did not readily support an inference of sex discrimination.
4. A selection process necessarily involves comparison and the exercise of judgment about candidates’ qualities. The reliance on management ability and confidence did not compel an inference of sex discrimination. The reasoning in Anya v University of Oxford [2001] EWCA Civ 405 did not require a tribunal to explore every event in the evidence; it required conclusions on factual issues essential to the result.

The Employment Tribunal’s dismissal of the claims was restored. The appeal was allowed with costs.

• Court of Appeal (Civil Division): allowed the Council’s appeal from the Employment Appeal Tribunal and restored the Employment Tribunal’s dismissal of the sex-discrimination claims.
• Employment Appeal Tribunal: allowed the applicants’ appeal from the Employment Tribunal and remitted the claims for rehearing before a different tribunal.
• Employment Tribunal: dismissed the claims.