Fox v Rangecroft & Anor

Under section 63A of the Sex Discrimination Act 1975, a claimant must first prove primary facts from which a tribunal could infer discriminatory treatment. Those facts must disclose some basis for inferring impermissibly differential treatment. Mere assertion, procedural irregularity or proof of a detriment is insufficient.

Only after that threshold is crossed must the tribunal consider the facts without assuming an adequate explanation and require the respondent to disprove discrimination. The shifted burden is therefore a burden of persuasion about the implications of established facts, rather than a transfer of responsibility for proving the primary facts.

The claimant brought employment tribunal proceedings alleging 19 acts of direct sex discrimination by her line manager and local-authority employer. The tribunal found that some events caused her detriment, but that she had established neither a relevant comparator nor evidence of gender bias. It therefore dismissed the claims.

The Employment Appeal Tribunal dismissed her appeal at a preliminary stage. She appealed to the Court of Appeal, contending that the tribunal had misunderstood section 63A of the Sex Discrimination Act 1975 and had consequently approached all its factual findings incorrectly.

The central issue was whether the alleged failure to follow the burden-of-proof guidance invalidated findings that no facts capable of supporting an inference of discrimination had been proved.

1. Appeal dismissed unanimously. The employment tribunal had correctly found that the claimant proved no primary facts from which sex discrimination could be inferred. Its findings disclosed no relevant male comparator, gender bias or connection between any detriment and the claimant's sex. They were findings properly open to the tribunal and had not been challenged on orthodox perversity grounds.

2. Section 63A of the Sex Discrimination Act 1975 requires a sequential inquiry. The claimant must first prove, on the balance of probabilities, primary facts from which the tribunal could infer discrimination. Since the issue is discrimination, those facts must include some basis for inferring impermissibly differential treatment. The tribunal then asks whether an inference of discrimination could be drawn, assuming at that stage that there is no adequate explanation. If it could not, the claimant loses. Only if it could does the burden of persuasion pass to the respondent.

3. The statutory shift concerns persuasion about the implications of proved facts. It does not transfer responsibility for proving the primary facts. The expression “absence of an adequate explanation” concerns an explanation for conduct shown to be differentially directed and potentially discriminatory. It does not prevent the tribunal, when determining what occurred, from considering evidence explaining why events happened.

4. The tribunal had grasped the necessary threshold despite expressing reservations about aspects of the guidelines in Barton v Investec Henderson Crossthwaite Securities Ltd [2003] IRLR 332. As the threshold was not crossed, any wider question about the precise content or status of the guidelines in Igen v Wong [2005] EWCA Civ 142 did not arise for authoritative determination.

5. The Employment Appeal Tribunal had therefore been correct to conclude that the proposed appeal disclosed no arguable point. Its determination was affirmed.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously. The court affirmed that the statutory burden did not shift because no facts capable of supporting an inference of sex discrimination had been proved.
2. Employment Appeal Tribunal: On 11 February 2005, HHJ Prophet dismissed the proposed appeal at a preliminary stage because it disclosed no arguable point.
3. Employment Tribunal: The tribunal dismissed the direct sex discrimination allegations. It found no relevant comparator, background gender bias or other facts from which discrimination could be inferred.