IGEN Ltd & Ors v Wong

Statutory burden-shifting provisions impose a two-stage process in direct discrimination claims. The claimant must first prove facts from which the tribunal could conclude, assuming no adequate explanation, that the respondent committed the discriminatory act. This includes proving on the balance of probabilities that the respondent was responsible; a mere possibility is insufficient. The respondent must then prove that the protected characteristic was in no sense a ground for the treatment. Less favourable treatment requires comparison with an actual or hypothetical person whose relevant circumstances are the same or not materially different. Unexplained unreasonable conduct may support an inference of discrimination, but unreasonableness is not itself discrimination and tribunals should avoid drawing that inference too readily without other supporting material.

The court heard three appeals concerning the statutory provisions which shift the burden of proof in direct discrimination claims.

• In Igen Ltd v Wong, an Employment Tribunal upheld part of a race discrimination claim arising from disciplinary treatment. The Employment Appeal Tribunal dismissed the employer’s appeal.
• In Emokpae v Chamberlin Solicitors, the tribunals found that a female employee had been dismissed because of rumours about a relationship with her male manager and upheld her sex discrimination claim.
• In Webster v Brunel University, the Employment Tribunal dismissed a race discrimination complaint because the claimant had not proved that an employee of the university had uttered a racial slur. The Employment Appeal Tribunal construed the burden provision differently and remitted the claim.

The common issue was how the first and second stages of the statutory burden-of-proof provisions operate, including what facts the claimant must prove, when the respondent’s explanation may be considered, and how the comparator requirement applies.

1. Disposition. The appeal in Igen Ltd v Wong was dismissed. The appeals in Emokpae v Chamberlin Solicitors and Webster v Brunel University were allowed. In Emokpae the tribunal decisions were set aside and the originating application dismissed. In Webster the Employment Appeal Tribunal’s order was set aside and the Employment Tribunal’s decision restored.

2. The statutory amendments altered, rather than merely codified, the former law. They require a two-stage process. First, the claimant must prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent committed the unlawful discriminatory act. Only if that requirement is satisfied must the respondent prove that it did not commit the act.

3. At the first stage the tribunal must assume that there is no adequate explanation. It must therefore disregard an adequate explanation when deciding whether the burden shifts. It may, however, consider evidence given by either party which assists it to identify the primary facts or draw the relevant inference. The hearing itself need not be divided into separate stages.

4. The word “could” concerns the inference which may be drawn from proved primary facts. It does not relieve the claimant of proving, on the balance of probabilities, every fact constituting the discriminatory act, including that the act was committed by the respondent or a person for whom it was responsible. Proof that the respondent’s employee might have committed the act is insufficient.

5. At the second stage the respondent must prove that the protected characteristic was in no sense a ground for the treatment. That formulation is not materially different from asking whether the protected ground significantly influenced the outcome, since a significant influence means more than a trivial one. Cogent evidence will ordinarily be expected because the relevant explanation is usually within the respondent’s knowledge.

6. Direct discrimination requires a comparison with an actual or hypothetical comparator whose relevant circumstances are the same or not materially different. Formal construction of a hypothetical comparator is not invariably obligatory, but failure to identify the comparator’s relevant characteristics may cause the tribunal to confuse less favourable treatment with the reason for that treatment.

7. In Wong, unexplained unreasonable conduct permitted the first-stage inference, and the respondents failed to provide an adequate explanation. In Emokpae, dismissal because of rumours about a relationship did not establish dismissal on the ground of sex; the appropriate comparator was a man rumoured to have had a homosexual relationship with the manager. In Webster, the claimant failed at the first stage because she had not proved that a university employee uttered the racial slur.

• Court of Appeal: In [2005] EWCA Civ 142, dismissed the Wong appeal, allowed the Chamberlin appeal and dismissed Emokpae’s originating application, and allowed the Brunel appeal while restoring the Employment Tribunal’s dismissal of Webster’s claim.
• Employment Appeal Tribunal — Wong: On 12 May 2004, dismissed the employer and managers’ appeal from the finding of race discrimination.
• Employment Tribunal — Wong: By a decision sent on 7 October 2003, dismissed two complaints but upheld the complaint concerning disciplinary treatment.
• Employment Appeal Tribunal — Emokpae: On 15 June 2004, upheld the Employment Tribunal’s finding of sex discrimination.
• Employment Tribunal — Emokpae: By reasons promulgated on 21 October 2003, held that the dismissal amounted to unlawful sex discrimination.
• Employment Appeal Tribunal — Webster: Allowed the appeal on the construction of section 54A and remitted the claim to a fresh Employment Tribunal.
• Employment Tribunal — Webster: Dismissed the race discrimination complaint because Webster had not proved that a university employee uttered the racial slur.