Hewage v Grampian Health Board
Mrs Hewage is of Sri Lankan origin. She was employed by the Grampian Health Board as head of service for the orthodontics department. She resigned from that post in 2003 and subsequently resigned from employment in 2004.
She brought claims for sex and race discrimination, alleging that she had been bullied and harassed by Mrs Strachan, the service manager for surgical specialities, and Mrs Munro, the clinical nurse manager.
She complained via occupational health to the board’s chief executive. The complaint was investigated, but it was recommended that no action be taken. She compared her treatment with that of two white male consultants, Professor Forrester and Mr Larmour. Professor Forrester had made a complaint against Mrs Strachan, which resulted in Mrs Strachan being moved to another position.
Following Mrs Hewage’s resignation, she was replaced by Mr Larmour and he was permitted to sit on the interview panel for dental nurses, a position that had been refused to Mrs Hewage.
The employment tribunal upheld Mrs Hewage’s discrimination claims, but the EAT upheld the board’s appeal. The Court of Session allowed Mrs Hewage’s appeal and the board appealed to the Supreme Court.
The issues that arose in the Supreme Court were:
- whether or not the comparison between Mrs Hewage and Professor Forrester and Mr Larmour was a like-for-like comparison; and
- the approach that the tribunal should take to the burden of proof.
The Supreme Court held that the comparison was appropriate. The question of whether or not the situations of Mrs Hewage and those of Mr Larmour and Professor Forrester were comparable was one of fact and degree. The tribunal had been entitled to find that these were like-for-like comparisons and that there were differences in treatment for which there was no adequate explanation.
The Supreme Court then considered the burden of proof. Section 136 of the Equality Act 2010 states:
“(2) If there are facts from which the court [or tribunal] could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.
(3) But subsection (2) does not apply if A shows that A did not contravene the provision.”
The burden of proof shifts to the employer where the claimant shows a prima facie case of discrimination. The Court of Appeal in Madarassy v Nomura interpreted previous guidance given by the same court in Igen v Wong and stressed that the tribunal should hear all the evidence, including that of the respondent, before deciding whether or not the respondent should bear the burden of proof. The respondent may dispute the claimant’s version of events, and therefore the tribunal must weigh up all the evidence in deciding on the balance of probabilities whether or not those events did in fact take place.
The Supreme Court approved the guidance on the application of the burden of proof given by the Court of Appeal in Igen v Wong, as interpreted in Madarassy, but commented that the guidance is not a substitute for the statutory language. The starting point should always be the statute.
The Supreme Court emphasised that the prima facie case of discrimination must be proved by the claimant, before the burden shifts to the employer.
It is useful to have Supreme Court approval of the Igen v Wong guidance as interpreted in Madarassy. However, although they have formed the basis of many appeals, the Supreme Court emphasised that “it is important not to make too much of the role of the burden of proof provisions”.
The provisions require careful attention where there is room for doubt as to the facts necessary to establish discrimination, but have nothing to offer where the tribunal is in a position to make positive findings on the evidence.
This case unfortunately does not shed any light on the question of exactly what the claimant is required to show in order to shift the burden of proof. The courts have commented that a difference in, for example, race and a difference in treatment are not sufficient; there must be something more. However, what precisely that “something more” must be is not clear.
Gurpreet Duhra, partner, DLA Piper
Case law from XpertHR on the burden of proof