Talbot v Costain Oil, Gas & Process Ltd

In discrimination claims, tribunals must determine the relevant primary facts and draw inferences from the totality of the surrounding circumstances. They should assess the parties and witnesses overall, test explanations against objective facts, documents, possible motives and inherent probabilities, and give proper consideration to factors pointing towards discrimination. The burden of proof under Equality Act 2010, section 136 is a matter of last resort. In harassment claims, a claimant’s contribution to a hostile atmosphere does not by itself answer the claim. Nor does personal resilience excuse conduct which would otherwise amount to harassment, although the victim’s perception and the circumstances remain relevant.

Mrs Talbot, an agency engineer working for Costain at Sellafield, brought 17 claims of sex discrimination and harassment arising from her treatment by three male colleagues and the termination of her contract after about 12 weeks.

The Employment Tribunal rejected all claims. It found some allegations proved but concluded that the treatment was not because of, or related to, sex. It also rejected certain allegations because the claimant had not satisfied the initial burden of proof. Mrs Talbot appealed, alleging an over-fragmented approach to the evidence, misuse of the burden of proof and errors concerning harassment under section 26 of the Equality Act 2010.

1. Appeal allowed. The Employment Tribunal’s judgment was set aside in its entirety and the whole case was remitted to a fresh Employment Tribunal for rehearing.
2. The Tribunal adopted an over-narrow and fragmented approach to fact-finding. It failed to assess the overall picture, make appropriate assessments of the parties and witnesses, consider inherent probabilities and draw appropriate inferences from missing documents. Findings about primary facts must be made by considering the evidence as a whole, including objective facts, documents, witness performance, demonstrable lies or exaggerations and the overall probabilities.
3. In deciding whether proven unfavourable treatment was because of sex, the Tribunal must consider all relevant circumstances, including conduct before and after the treatment, the totality of proven allegations, relevant rejected allegations and factors pointing towards discrimination. An alleged discriminator’s explanation must be assessed for credibility and reliability against objective evidence, possible motives and the wider circumstances.
4. Section 136 of the Equality Act 2010 places the burden on the alleged discriminator to prove the absence of discrimination where, in the absence of any other explanation, an inference of discrimination would be proper. Resort to the burden of proof should ordinarily be avoided if the factual assessment can be resolved directly.
5. For harassment, a claimant’s contribution to a hostile atmosphere may be relevant but does not itself dispose of a claim against the respondent. A resilient claimant’s ability to cope with conduct cannot excuse conduct which would otherwise constitute harassment. The Tribunal’s reasons were insufficiently clear on both points.

• Employment Tribunal: Claims of sex discrimination and harassment rejected in a judgment sent out on 23 December 2015.
• Employment Appeal Tribunal: Appeal allowed; the Tribunal’s judgment was set aside in its entirety and the case remitted to a fresh Employment Tribunal.