Case round-up

This week’s case round-up

Bonus system should be ‘transparent’
Barton v Investec Henderson Crosthwaite Securities Ltd, EAT, 2003, All
ER (D) 61

Louise Barton, a City fund manager, brought tribunal proceedings for sex
discrimination and equal pay after discovering that her salary and bonuses were
considerably lower than those of her male colleagues (including one whom Barton
had recruited herself).

The tribunal dismissed her claims, finding that the pay difference was not
motivated by discrimination. It regarded it as "a vital component of the
City bonus culture" that bonus schemes are discretionary, and that
individual bonuses are not revealed.

In upholding Barton’s appeal, however, the EAT stated that tribunals should
not condone a City bonus culture that involved secrecy or lack or transparency,
just because it involved large sums of money.

In its decision, the EAT sets out detailed guidance on the burden of proof
in sex discrimination cases.

It is for the applicant to prove, on the balance of probabilities, facts
from which the tribunal could (in the absence of an adequate explanation)
conclude sex discrimination.

Since it is unusual to find direct evidence of discrimination, the tribunal
must draw inferences from its findings of fact.

Where the applicant has proved facts from which inferences of less
favourable treatment on the grounds of sex could be drawn, the burden of proof
then moves to the respondent, who must prove on the balance of probabilities
that the treatment was not on the grounds of sex.

Finally, the tribunal must assess whether the respondent has provided an
adequate explanation for the treatment in question.

The case was remitted for a rehearing.

Race claim allowed after nine years
London Borough of Southwark v Afolabi, CA, 2003, IRLR 220

This case demonstrates the extent to which an employment tribunal might be
prepared to exercise its discretion to extend the three-month time limit for
bringing a discrimination claim – particularly where the individual has been
unaware of the circumstances giving rise to such a claim.

Afolabi had been employed in various accounting positions since 1973. In
1990, he unsuccessfully applied for a number of senior audit posts with the
council. Nine years later, he examined his employment file and found a document
which indicated that he had actually performed well at the interviews for these
various positions.

He subsequently brought a claim for race discrimination, on the grounds that
the council’s decision not to appoint him to the post of senior auditor was
directly discriminatory.

The tribunal decided that it was just and equitable in this case to extend
the time limit, and upheld his claim for race discrimination.

The Court of Appeal dismissed the council’s appeal, holding that in
exceptional cases, it would be open to a tribunal to exercise its discretion
and extend the time limit for making a discrimination claim for as long as nine

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