Hewage v Grampian Health Board

The Supreme Court dismissed the Board's appeal and affirmed the Inner House's decision that the employment tribunal was entitled to find that the respondent had been discriminated against on grounds of sex and race. The case concerned claims of constructive and unfair dismissal (section 94(1) Employment Rights Act 1996) together with complaints under the Sex Discrimination Act 1975 and the Race Relations Act 1976.

The Court held that the employment tribunal had applied the correct legal approach to the two-stage burden of proof provisions contained in section 63A(2) of the 1975 Act and section 54A(2) of the 1976 Act as explained in Igen Ltd v Wong, and that it was open to the tribunal to treat Professor Forrester and Mr Larmour as appropriate comparators. The tribunal had considered the primary facts and, in the absence of an adequate explanation, was entitled to draw prima facie inferences of discrimination which the Board failed to rebut.

Background and parties: The respondent, an orthodontic consultant, resigned after alleging prolonged bullying and harassment by colleagues and brought claims for constructive and unfair dismissal and for sex and race discrimination against her employer, Grampian Health Board. The Board conceded constructive and unfair dismissal at the employment tribunal stage. The employment tribunal found unlawful discrimination; the Employment Appeal Tribunal overturned that finding by a majority; the Inner House allowed the respondent's appeal and remitted the matter for reconsideration; the Board appealed to the Supreme Court.

Nature of the claim and relief sought: The respondent sought remedies for constructive and unfair dismissal under section 94(1) of the Employment Rights Act 1996 and for unlawful sex and race discrimination under the Sex Discrimination Act 1975 and the Race Relations Act 1976.

Issues framed by the court:

• whether the employment tribunal had erred in law in its approach to comparison and in concluding that there was a prima facie case of sex and race discrimination;
• whether the tribunal misapplied the two-stage burden of proof provisions in section 63A(2) of the 1975 Act and section 54A(2) of the 1976 Act (as explained in Igen Ltd v Wong);
• whether the comparators relied upon (Professor Forrester and Mr Larmour) were appropriate like-for-like comparators; and
• whether the Inner House was wrong to remit the matter to the original tribunal rather than to a differently constituted tribunal.

Court's reasoning: The Supreme Court accepted that the situations compared were not identical but emphasised that comparability is a matter of fact and degree. The tribunal had examined the relevant evidence and concluded that there were material differences in treatment of the respondent and the comparators for which no adequate explanation had been provided. The Court endorsed the two-stage statutory framework requiring the complainant first to prove facts from which, in the absence of an adequate explanation, discrimination could be inferred; only then does the burden shift to the respondent to prove there was no unlawful act. The Supreme Court found no need to add further guidance to existing authority (including Igen and Madarassy) and accepted that the tribunal had applied the correct legal approach. It also held that remitting the matter to the original tribunal was appropriate given its prior familiarity with the evidence.

Procedural posture: Appeal to the Supreme Court from the Second Division of the Inner House (which had allowed the respondent's appeal and quashed the EAT's decision): [2011] CSIH 4, 2011 SLT 319. The Supreme Court dismissed the Board's appeal and ordered the Board to pay the costs of the appeal to the Supreme Court.

Appeal dismissed. The Supreme Court held that the employment tribunal was entitled to treat the identified comparators as appropriate and had 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. The tribunal had examined the primary facts, properly assumed (for the purposes of testing inferences) the absence of an adequate explanation and was entitled to draw prima facie inferences of discrimination which the Board failed to rebut. The remit to the original tribunal was also proper.

Employment tribunal (Aberdeen) found constructive/unfair dismissal conceded and unlawful sex and race discrimination (judgment delivered 4 December 2007). Employment Appeal Tribunal allowed the Board's appeal and dismissed discrimination claims (majority, 15 April 2009). Inner House, Second Division allowed the respondent's appeal and quashed the EAT decision and remitted the matter to the employment tribunal: [2011] CSIH 4, 2011 SLT 319. Appeal to the Supreme Court: [2012] UKSC 37 (this judgment).