EB v BA

Where a claimant establishes facts from which an employment tribunal could infer discrimination, the employer must prove that the treatment was in no sense whatsoever on the prohibited ground. In a gender-reassignment case concerning allocation of work, the tribunal must examine the whole relevant period, including proposal-stage involvement, the nature and quality of work allocated, and why other work was allocated to others. General evidence of market conditions or relative competence will not necessarily discharge the burden where a detailed project analysis is required. An employer cannot evade the statutory burden by requiring the claimant to identify and prove every project that should have been allocated to her.

The appellant, employed as a principal in a financial-services management consultancy, transitioned to a female role in April 2000 and underwent gender-reassignment surgery in November 2000. Her billability fell substantially, and she was selected for redundancy in July 2001 and dismissed on 31 August 2001. The Employment Tribunal upheld her unfair-dismissal complaint on procedural grounds but rejected her gender-discrimination and redundancy complaints. The Employment Appeal Tribunal dismissed her appeal.

She appealed to the Court of Appeal, challenging the treatment of the burden of proof under section 63A of the Sex Discrimination Act 1975, the analysis of work allocation and redundancy, and the delay in delivering judgment. The central issue was whether the tribunal had properly required the respondent to disprove discrimination after the burden shifted.

1. Appeal allowed and matters remitted. The Employment Tribunal’s findings on discrimination could not stand. The issue of redundancy was also remitted because it was closely linked to the alleged discrimination. The complaints were remitted to a new tribunal for a fresh hearing.
2. Section 63A of the Sex Discrimination Act 1975 requires the claimant first to prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that discrimination had occurred. Once that threshold is crossed, the respondent must prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the ground of gender reassignment.
3. The Employment Tribunal erred by concentrating on billability during only part of the period after transition. Work allocation at the proposal or tagging stage could itself reveal discrimination, even though it did not immediately affect billability. The tribunal also needed to examine the nature and quality of the work allocated, including whether the claimant had previously worked for the relevant clients. In the absence of further adverse findings, the burden should have shifted in respect of the period beginning in May 2000 and continuing through dismissal.
4. General evidence about reduced instructions, relative competence, client requirements, language, location and cost was insufficient on the facts. A detailed analysis was required of why the appellant worked on only about three projects out of more than 200 and why she was not selected for proposed projects.
5. The respondent’s failure to produce adequate project records or schedules, coupled with the absence of contemporaneous allocation records, deprived the appellant of a fair trial. The tribunal wrongly allowed the appellant’s lack of detail to dominate its assessment instead of addressing the adverse consequences of the shifted burden.
6. The Court did not determine whether the nine-month delay in delivering judgment itself vitiated the decision, although it described such delay as very undesirable.

• Court of Appeal (Civil Division) allowed the appeal against the Employment Appeal Tribunal’s dismissal of the appellant’s appeal, set aside the Employment Tribunal’s findings on discrimination, and remitted the discrimination and redundancy issues to a new tribunal. [2006] EWCA Civ 132
• Employment Appeal Tribunal dismissed the appellant’s appeal from the Employment Tribunal’s decision.
• London Central Employment Tribunal upheld the complaint of unfair dismissal on procedural grounds but rejected the complaints of sex discrimination and dismissal by reason of redundancy.