EB v BA

The Court of Appeal held that the Employment Tribunal erred in its approach to the burden of proof under section 63A of the Sex Discrimination Act 1975 when considering the appellant's complaint of discrimination on grounds of gender reassignment (section 2A SDA 1975). The Tribunal had treated the appellant's lack of billable time and allocation to projects without adequate analysis of the crucial post-transition period (May–November 2000), failed to make necessary findings about "tagging" (proposal-stage allocation) and the nature of the work she performed, and did not confront the consequences of the respondent's failure to produce project documentation. Because the respondent did not carry the evidential burden once section 63A operated, the Tribunal's findings on discrimination could not stand. The Court therefore remitted the discrimination complaint and the linked redundancy issue (s.139 Employment Rights Act 1996) for rehearing by a new tribunal.

This was an appeal from the Employment Appeal Tribunal against findings of the Employment Tribunal concerning sex discrimination connected to gender reassignment and consequential selection for redundancy. The appellant, a consultant promoted to principal, transitioned to a female role in April 2000 and had gender reassignment surgery in November 2000. The respondent organisation used a practice of allocating staff to projects by a weekly internal "tagging" process; employees' continued employment depended in part on "billability" (the proportion of time billed to client projects or the firm's investment budget).

Nature of the claim:

• The appellant alleged less favourable treatment after gender reassignment in allocation of work contrary to section 2A of the Sex Discrimination Act 1975, leading to low billability and selection for redundancy (s.139 Employment Rights Act 1996). She also complained of procedural unfairness and insufficient disclosure.

Issues before the Court:

• Whether the Employment Tribunal correctly applied the statutory burden of proof under section 63A SDA 1975;
• Whether the Tribunal made necessary findings about proposal-stage allocation ("tagging") and the nature and quality of post-transition work;
• Whether the respondent discharged the burden of proof once the prima facie case was established; and
• Whether the Tribunal's handling of disclosure and documentary evidence deprived the appellant of the protection of section 63A.

Reasoning and decision:

• The Court accepted that the Tribunal recognised a prima facie case and stated that the burden of proof shifted to the respondent, but concluded the Tribunal did not adequately apply the s.63A analytical framework to the period immediately after transition. The Tribunal concentrated unduly on later billability figures and on actual billed hours without analysing proposal-stage staffing and the nature of the work the appellant performed. That was material because the appellant asserted she was staffed on only three projects out of many hundreds in the relevant period.
• The respondent had failed to produce a coherent schedule of projects and proposals, and the Tribunal did not confront the consequences of that failure once the burden of proof had shifted. The Court found that only a detailed analysis of available projects and proposals could properly discharge the respondent's burden on these facts, and that the respondent's approach (leaving it to the appellant to identify projects) was incompatible with the purposes of section 63A.
• For these reasons the Court concluded the Tribunal's findings on discrimination could not stand and remitted both the discrimination and the closely linked redundancy questions to a fresh tribunal. The Court indicated the rehearing should be before a new tribunal and noted the desirability of more active case management where the reverse burden may operate.

Appeal allowed in part. The Court of Appeal held that the Employment Tribunal wrongly applied the burden of proof under section 63A SDA 1975, failed to make necessary findings about proposal-stage allocation and the nature of post-transition work, and did not address the respondent's inadequate documentary disclosure. Because the respondent did not discharge the burden once the prima facie case arose, the Tribunal's discrimination findings could not stand. The Court remitted the discrimination complaint and the linked redundancy issue to a new Employment Tribunal for rehearing.

Appeal from the London Central Employment Tribunal (first instance) to the Employment Appeal Tribunal (appeal dismissed) and thence to the Court of Appeal ([2006] EWCA Civ 132), which allowed the appeal in part and remitted the discrimination and redundancy issues to a new Employment Tribunal for a fresh hearing.