Small v Bark Havering And Redbridge NHS Trust

The Igen v Wong burden-of-proof guidance is not a mechanical 13-stage procedure, but a tribunal must identify whether the claimant has proved facts capable of supporting an inference of discrimination and, if so, whether the employer has discharged the evidential burden. A tribunal must address both stages separately for each complaint. General evidence of allegedly poor treatment of employees sharing a protected characteristic does not, without more, justify an inference that every decision concerning them was discriminatory. Whether correspondence constitutes a detriment is assessed objectively by asking whether a reasonable worker would or might regard it as detrimental.

The claimant, a black Afro-Caribbean nurse, brought consolidated sex and race discrimination and harassment complaints against her NHS employer. The Employment Tribunal dismissed most complaints, including complaints concerning the stoppage of sick pay and communications about her return from maternity leave.

On appeal, the claimant challenged the Tribunal’s application of the Igen v Wong burden-of-proof approach, its treatment of the alleged detriment caused by return-to-work correspondence, and its conclusions on race discrimination and harassment. The central issues were whether the Tribunal had made sufficient findings at both stages of the discrimination analysis and whether the correspondence could amount to a detriment.

1. Sex discrimination and sick pay. The appeal was allowed. The Tribunal had evidently considered that the complaint about stopping sick pay raised facts capable of supporting an inference of sex discrimination, but it had not explained why the employer had discharged the second-stage burden. The issue was remitted for rehearing. This did not determine that the claim would succeed.
2. Application of the burden of proof. The Igen v Wong guidance, as reaffirmed in Madarassy v Nomura International plc, need not be applied mechanically and is not a 13-stage process. Nevertheless, the Tribunal had to identify which complaints passed the first stage and then determine whether the employer had provided an adequate explanation. The Tribunal’s unequivocal finding that the treatment was in no sense less favourable on racial grounds was sufficient in relation to race, but its equivocal reference to conduct not necessarily showing sex discrimination did not address the correct approach.
3. Race discrimination. The appeal was dismissed. Evidence that two Afro-Caribbean employees had complained about a manager, together with the absence of evidence of comparable complaints by white employees, did not establish facts from which the stoppage of sick pay could be inferred to have been based on race. The first-stage burden cannot be extended so broadly that any decision concerning employees of the same ethnic origin becomes presumptively tainted.
4. Harassment. The appeal was dismissed. On the pleaded case, harassment was merely an alternative description of the alleged discriminatory treatment. If the stoppage of sick pay was not sex discrimination, the harassment claim could not succeed on that basis. A new argument concerning attendance at a crowded GP surgery was not permitted on appeal because it had not been raised below.
5. Return-to-work correspondence. The Tribunal had to decide whether the emails and letters caused a detriment, applying the objective test in Shamoon v Chief Constable of the RUC. A single email can constitute a detriment, but the question depends on its contents and the view that a reasonable worker would or might take, not merely on the claimant’s subjective reaction. If a detriment was established, the Tribunal was to apply the two stages of Igen v Wong.
6. Remission. The outstanding sex discrimination issues were remitted to the same Tribunal. Applying Sinclair Roche & Temperley v Heard & Fellows, there was no demonstrated bias or partisanship, and the same Tribunal was best placed to deal with the unfinished business, compensation issues and a further claim.

• Employment Tribunal: dismissed the relevant complaints, while upholding a separate complaint concerning failure to consult about shift-pattern changes.
• Employment Appeal Tribunal: allowed the appeal on the sex discrimination complaint concerning stopped sick pay; remitted that issue and the return-to-work correspondence issue to the same Tribunal. Dismissed the appeals concerning race discrimination and harassment.