Sinclair Roche & Temperley v Heard;
Bahl v Law Society
Sex/race discrimination – the burden of proof
These are the latest cases for dealing with the burden of proof in discrimination cases. In the first case, Sian Heard (SH) and Sian Fellows (SF) are female solicitors who brought successful tribunal complaints for direct and indirect sex discrimination against their former employer, Sinclair Roche & Temperley, on the grounds that their career progression to senior equity partnership in the firm had been blocked in preference for other male colleagues.
This case received a significant amount of press coverage due to the large sums of money being claimed (in excess of £3m each).
Unsurprisingly, Sinclair Roche & Temperley appealed against this decision to the Employment Appeal Tribunal.
This case centred around the question of work referrals, and whether SH and SF had been discriminated against so far as the referrals system operated. The EAT held that the tribunal had failed to consider, set out and draw conclusions from the material facts relative to the establishment of a prima facie case and to the respondent’s explanation after the burden had shifted. Accordingly, the case was remitted to the same tribunal to consider these issues properly.
In a similar vein, the Court of Appeal, upholding the decision reached by the EAT, held that Bahl had not been discriminated against by the Law Society, concluded that unreasonable treatment of a complainant by an employer cannot, of itself, lead to an inference of discrimination, even if there is nothing to explain it.
These cases (together with the earlier decisions in Barton v Investec Henderson Crossthwaite Securities Ltd and University of Huddersfield v Wollf) are useful decisions for employers faced with discrimination claims. Collectively, these cases establish that in order to prove a prima facie case of unfavourable treatment and thereby shift the burden of proof in discrimination cases to their (former) employer to rebut that prima facie case, claimants must be able to point to more than a difference in treatment; they must be able to list other factors which could lead the tribunal to draw an inference that the sole or primary reason for the difference in treatment is their sex or race.
While the cases referred to are sex and race discrimination decisions, it is likely that the tribunals will also take this line of authority into consideration in other types of discrimination cases.
What you should do
- Be aware of these cases when defending discrimination proceedings, in particular when drafting pleadings and witness statements.