Maksymiuk v Bar Roma Partnership

Under section 136 of the Equality Act 2010, a claimant must prove facts from which discrimination could properly be inferred before the evidential burden passes. Pregnancy, an employer’s knowledge of it, and unfavourable treatment are necessary background facts, but do not alone justify that inference.

The Igen two-stage approach is an important guide, not a rigid sequence. A tribunal may consider all the evidence at the first stage. Where it finds a genuine redundancy, objective selection criteria, honest scoring, and no established under-marking, it may conclude that there is no evidential basis for pregnancy discrimination.

The claimant, a bar employee, was selected for redundancy shortly after informing the respondent that she was pregnant. She alleged that her dismissal and selection were unfavourable treatment because of pregnancy or pregnancy-related illness, contrary to section 18(2) of the Equality Act 2010.

The Employment Tribunal at Edinburgh dismissed the discrimination claim. It found that a redundancy process had begun before the respondent knew of the pregnancy, that the redundancy was genuine, and that the claimant would have been selected under objective criteria. It allowed separate claims concerning written employment particulars and written reasons for dismissal.

The claimant appealed, alleging errors in the burden-of-proof analysis and selection process, perversity, and apparent bias. The central issue was whether the Tribunal had been entitled to find that the facts established did not justify an inference of pregnancy discrimination.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the claimant had not established facts from which it could infer pregnancy-related discrimination. The statutory burden therefore did not pass to the respondent.

2. Section 136 of the Equality Act 2010 requires a two-stage analysis, but the guidance in Igen v Wong [2005] ICR 931 must be applied intelligently rather than mechanically. A tribunal may hear and assess the respondent’s evidence at the first stage. It is not required to divide its reasoning artificially where, on all the evidence, it can fairly decide whether discrimination may be inferred.

3. Pregnancy and the employer’s knowledge of it did not, without more, create an inference. The Tribunal permissibly found that the redundancy proposal and notice to bar staff pre-dated notification of the pregnancy. It also found that the selection criteria were objective, the manager had acted honestly, and the claimant would have had the lowest score even after the established corrections. Those findings excluded the suggested inference.

4. Discrimination could in principle arise in the selection process even where dismissal would otherwise follow. Deliberate or unconscious under-marking because of pregnancy could support an inference. However, the Tribunal had not found that the claimant was under-marked, and the appellate court could not draw inferences from assertions which the Tribunal had rejected.

5. The challenge to paragraph 70 of the Tribunal’s reasons failed when the judgment was read as a whole. It recorded the respondent’s asserted reason for dismissal rather than an impermissible pre-judgment. The apparent-bias ground also failed. The Employment Judge’s interventions to clarify relevance, prevent repetition, and manage cross-examination did not give a fair-minded and informed observer a real possibility of bias.

• Employment Appeal Tribunal: appeal dismissed; the Employment Tribunal’s dismissal of the pregnancy-discrimination claim was upheld.
• Employment Tribunal, Edinburgh: dismissed the discrimination claim, while allowing claims concerning a written statement of employment particulars and written reasons for dismissal.