Case round-up by Eversheds 020 7919 4500
Burden of proof had not shifted
Pratt v Sanden International (Europe) Limited, EAT, [2003] All ER (D)
359
Pratt was engaged as a general and personnel administrator. Her
responsibilities included the maintenance of personnel records, employee
training and related personnel matters, although prior to her appointment she
had minimal experience in that field. The company subsequently appointed a
manager of human resources administration, which provoked resentment and
aggressive, unco-operative conduct by Pratt.
The company tried to improve working relations, but Pratt eventually left
work and refused to attend subsequent disciplinary proceedings brought to
address her unauthorised absence. She brought claims of constructive dismissal,
race and sex discrimination and equal pay. She was unsuccessful at the
tribunal, but appealed against the sex discrimination decision, claiming the
tribunal had incorrectly applied the burden of proof.
The Employment Appeals Tribunal (EAT) considered earlier case law and
concluded that the burden of proof only shifts to the employer once a ‘credible
suggestion’ of disproportionate adverse impact has been raised. Pratt had to
show that she had suffered a detriment and had been less favourably treated,
before an inference could be drawn that the treatment arose because of her sex.
Only then would the burden of proof shift to the employer. It did not in this
case since she had only shown a detriment.
Comparators not valid
Matthews & others v Kent & Medway Towns Fire Authority &
others, EAT, [2003] IRLB 724
Matthews and his colleagues were retained firefighters who complained they
were treated less favourably than ‘whole-time’ firefighters by being denied
access to the fireman’s pension scheme and other benefits. To make a legitimate
comparison under the Part-Time Workers (Prevention of Less Favourable
Treatment) Regulations 2000, the part-time employee and their full-time
comparator must both be employed, ‘under the same type of contract’ and must be
engaged ‘in the same or broadly similar work’ having regard to their level of
qualification, skills and experience.
The tribunal concluded that the retained firefighters were employed under
contracts of a different type and that they were not engaged in the same or
broadly similar work, meaning their claim failed.
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The EAT dismissed the employees’ appeal. The tribunal had found some
similarities but a larger number of differences between the work of retained
and whole-time firefighters, and a number of differences in their contractual
terms. Whole-time firefighters had additional duties and a higher level of
skills and qualifications than the retained firefighters.
The tribunal’s decision that firefighters were employed under different
types of contract and that it was reasonable for the employer to treat them
differently had therefore been based on ample evidence.
