Johal v. Commission for Equality & Human Rights

For discrimination arising from maternity leave, the question is why the claimant received the treatment complained of. Where the treatment is not inherently discriminatory, it is unlawful only if discriminatory motivation, conscious or subconscious, is an effective cause. Maternity leave may be the occasion for a detriment without being its cause. A tribunal may therefore find that an administrative error, rather than maternity leave, caused the failure to communicate a vacancy. That factual conclusion is permissible if supported by the findings. Where a prima facie case is assumed, a respondent may rebut it by providing a non-discriminatory explanation.

The claimant, employed by the Commission for Equality & Human Rights, was on maternity leave when she was not notified of an internal vacancy. The Employment Tribunal found that the failure resulted from administrative error, although the claimant’s maternity leave was the occasion for the omission. It held that the detriment was not on the ground of maternity leave.

The claimant appealed, arguing that the tribunal had applied the wrong causation test and had reached perverse factual conclusions. The central issue was whether the tribunal’s answer to the reason-why question was legally permissible.

1. Appeal dismissed. The tribunal correctly directed itself on section 3A of the Sex Discrimination Act 1975, and its factual conclusion disclosed no error of law.
2. Section 3A prohibits unfavourable treatment of a woman because she is exercising a statutory right to maternity leave. Following the legislative removal of the earlier comparison requirement, the provision must be understood consistently with the applicable European jurisprudence. No male comparator is required for a woman who is pregnant or on maternity leave.
3. The distinction drawn in Amnesty International v Ahmed between inherently discriminatory treatment and treatment which becomes discriminatory through motivation was accepted. Where treatment is inherently discriminatory, the discriminator’s motive is immaterial. Where it is not inherently discriminatory, the tribunal must ask why the claimant was treated in that way, adopting the approach identified by Lord Nicholls in Shamoon v Chief Constable of the Royal Ulster Constabulary.
4. On the facts, the tribunal was entitled to find that the predominant and effective reason for the failure to notify the claimant was genuine administrative error. Maternity leave was the occasion for the detriment, but not its cause. The finding could not be impugned as perverse.
5. Applying the approach in Madarassy v Namura International, even if a prima facie case were assumed, the respondent had provided a non-discriminatory explanation. The secondary issue concerning the claimant’s prospects of obtaining the vacancy therefore did not arise.

• Employment Appeal Tribunal: Appeal from the Employment Tribunal dismissed. The tribunal’s finding that administrative error, rather than maternity leave, caused the detriment was upheld.