Facts
Employed as an emerging markets specialist at Nomura in January 2000, Madarassy became pregnant in June 2000 and took maternity leave from March to July 2001. Four months later, she was made redundant. She brought claims against the bank for sex discrimination and unfair dismissal.
First heard by the employment tribunal in November 2002, Madarassy’s claim consisted of 33 separate allegations. The initial hearing dismissed her claim for unfair dismissal and all of her claims for sex discrimination, save one concerning Nomura’s assessment of possible risks to her health from her working environment. Madarassy appealed and Nomura cross-appealed on the issue of the workplace risk assessment.
The Employment Appeal Tribunal essentially agreed with the original decision but ordered some very limited points to be reconsidered by the same tribunal. It also stated that Nomura was not at fault over the risk assessment. Assisted by the Equal Opportunities Commission, Madarassy appealed this decision to the Court of Appeal.
Decision
The Court of Appeal ruled in favour of Nomura. In particular, it said that to establish a prima facie case, there needs to be something more than a set of circumstances where the tribunal “could” conclude discrimination – mere differences in status or treatment are not sufficient. In most areas, the court said Madarassy had not successfully demonstrated a prima facie case of discrimination and in those areas where she had crossed that threshold, Nomura had successfully explained the reasoning behind the treatment on grounds other than sex.
The court also ruled that Nomura was correct in not carrying out a risk assessment in the absence of any evidence from Madarassy that her working conditions were such as to present a risk to her – providing helpful additional guidance for other employers on this issue.
Key implications
This is a landmark case concerning how the burden of proof should be applied, given the amendment to section 63A of the Sex Discrimination Act 1975. This is the section that effectively “reverses the burden of proof” once the complainant has proved a prima facie case of sex discrimination. If a prima facie case of discrimination is proved, then the respondent must rebut this to win.
The argument in this case concerned how far the complainant must go to establish a prima facie case of discrimination – was it enough for Madarassy to say she was dismissed upon return from maternity leave to show a prima facie case of discrimination, or would she need to go further and show a link between the dismissal and the maternity leave aside from the timing?
Had the court ruled in favour of Madarassy, a very low threshold for proof of sex discrimination would have been set. In practice, this would have resulted in employers being required to justify their actions in virtually every case where they were accused of sex discrimination.
Following the ruling in favour of Nomura, we now have clear and sensible parameters for employers, employees and the courts to determine future claims of sex discrimination. The case also provides useful clarification of the guidelines laid down in the case of Igen v Wong.
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By Victoria Parry, partner at Osborne Clarke, and legal adviser to Nomura in the case of Madarassy v Nomura International
