Hewage v Grampian Health Board (Scotland)

Under section 63A(2) of the Sex Discrimination Act 1975 and section 54A(2) of the Race Relations Act 1976, a claimant must first prove facts from which unlawful discrimination could be concluded in the absence of an adequate explanation. At that stage, the tribunal assumes only that no adequate explanation exists. It does not assume that a prima facie case has been established.

If that initial burden is discharged, the respondent must prove that it did not discriminate. The burden provisions have no practical role where the tribunal can make positive findings on the evidence. Whether proposed comparators are in comparable situations is a question of fact and degree. Material differences do not prevent comparison where the evidence permits the tribunal to identify relevantly similar treatment and draw an inference of discrimination.

Mrs Hewage, a consultant orthodontist employed by Grampian Health Board, alleged that the Board treated her less favourably than white male consultants because of her sex and race. The Board conceded that she had been constructively and unfairly dismissed. The employment tribunal upheld her discrimination claims after considering the Board’s contrasting treatment of Professor Forrester and Mr Larmour.

A majority of the Employment Appeal Tribunal allowed the Board’s appeal and dismissed the discrimination claims. It held that the employment tribunal had misapplied the statutory burden of proof and had relied on inappropriate comparators. The Inner House allowed Mrs Hewage’s appeal, quashed the Employment Appeal Tribunal’s decision and remitted a limited question to the original tribunal: [2011] CSIH 4, 2011 SLT 319. The tribunal subsequently affirmed its discrimination findings.

The Board appealed to the Supreme Court. The central issues were whether the employment tribunal had erred in its comparison of the employees or its application of the two-stage burden of proof, and whether any remit should have been made to a differently constituted tribunal.

Appeal dismissed unanimously. Lord Hope delivered the judgment, with which Lady Hale, Lord Mance, Lord Kerr and Lord Reed agreed.

1. Whether the circumstances of proposed comparators were comparable was a question of fact and degree. Although Professor Forrester’s and Mr Larmour’s situations differed from Mrs Hewage’s in several respects, there was substantial evidence supporting the employment tribunal’s assessment. It was entitled to contrast the Board’s response to the breakdown of Professor Forrester’s relationship with the service manager, the rapid acceptance of Mr Larmour’s proposal concerning interview panels, and the immediate support offered to Mr Larmour with the treatment received by Mrs Hewage.

2. The employment tribunal correctly applied the two-stage burden of proof under section 63A(2) of the Sex Discrimination Act 1975 and section 54A(2) of the Race Relations Act 1976. At the first stage, the claimant must prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that unlawful discrimination occurred. The required assumption concerns only the absence of an adequate explanation. It does not presume that the claimant has established a prima facie case.

3. The employment tribunal examined the evidence step by step, addressed whether the comparisons were like for like and found unexplained differences in treatment. Those findings permitted a prima facie inference of sex and race discrimination. The burden then passed to the Board, which failed to rebut that inference. The tribunal neither misdirected itself nor considered only part of the relevant evidence.

4. The guidance in Igen Ltd (formerly Leeds Career Guidance) v Wong [2005] ICR 931 remained clear and sufficient. Judicial guidance does not replace the statutory language. The Court endorsed the explanations in Madarassy v Nomura International plc [2007] ICR 867, including that tribunals ordinarily hear all the evidence before undertaking the two-stage analysis. Following Martin v Devonshires Solicitors [2011] ICR 352, the burden provisions require attention where the facts remain doubtful but offer nothing where the tribunal can make positive findings.

5. An employment tribunal’s reasoning should receive a generous interpretation and should not be subjected to an unduly technical or critical analysis. It was unnecessary to rely on that principle because the reasoning in this case was clear.

6. The Inner House was entitled to remit the matter to the original employment tribunal. That tribunal remained able to re-examine the issues when directed by an appellate court and had the advantage of already having heard and assessed the evidence. The Supreme Court affirmed the part of the Second Division’s interlocutor which allowed the appeal and quashed the Employment Appeal Tribunal’s decision. The Board was ordered to pay the costs of the Supreme Court appeal.

1. United Kingdom Supreme Court: Dismissed the Board’s appeal unanimously, affirmed the Second Division’s decision to allow Mrs Hewage’s appeal and quash the Employment Appeal Tribunal’s decision, and ordered the Board to pay the costs of the Supreme Court appeal: [2012] UKSC 37.
2. Inner House of the Court of Session: Allowed Mrs Hewage’s appeal, quashed the Employment Appeal Tribunal’s decision and remitted a limited question to the employment tribunal: [2011] CSIH 4, 2011 SLT 319.
3. Employment Appeal Tribunal: By a majority, allowed the Board’s appeal and dismissed the discrimination claims. It held that insufficient notice had been given and that the employment tribunal had misapplied the burden of proof and comparator analysis.
4. Employment Tribunal: Upheld claims of sex and race discrimination after the Board conceded constructive and unfair dismissal. Following the Inner House’s remit, the original tribunal affirmed that it would reach the same discrimination findings by reference to the three relevant matters alone.