Burden of proof in sex and race discrimination claims
Network Rail Infrastructure Limited v Griffiths-Henry, EAT, 23 May 2006
Miss Griffiths-Henry joined Network Rail in 2002 as an area finance manager. Between June 2003 and July 2004 there was a major reorganisation of the business resulting in a TUPE transfer of around 15,000 employees. This led to a duplication of certain roles, and a need for redundancies. There were two stages to the redundancy process. First, where the reorganisation resulted in fewer posts, the affected employees had to submit preference forms indicating up to three positions for which they wished to be considered. Each candidate was then assessed according to a set of skills-based criteria. Employees who were not appointed to a position at this first stage then had to apply for alternative posts and, if unsuccessful, were made redundant.
Griffiths-Henry was one of nine employees competing for five area finance controller positions. She was black, and the eight other candidates were white males. Her manager, Mr Pearson, assessed the candidates by reference to their CVs and his own knowledge of their performance. In certain cases, including Griffiths-Henry’s, this information was limited to Pearson assessing their performance after having had limited contact with the candidates, and without asking the previous managers for their assessment of the candidates.
On Pearson’s assessment, Griffiths-Henry was the second lowest scoring of the candidates. On being told she was unsuccessful in her application, Griffiths-Henry left work that day and did not return. She subsequently brought race and sex discrimination, unfair dismissal and breach of contract claims all of which were successful.
The tribunal found that although the selection criteria were objective, there were certain defects in Pearson’s assessment, and it was tainted by subjectivity. These defects rendered the dismissal unfair. The tribunal also concluded that there was evidence from which it could properly infer both sex and race discrimination. Network Rail appealed against the finding of sex and race discrimination only.
The appeal was allowed on one ground. Network Rail’s principal argument was that the tribunal was not entitled to find on the evidence that Griffiths-Henry had established sufficient facts from which it could infer discrimination. Accordingly, the tribunal was wrong to say that there was a prima facie case, which then caused the burden of proof to pass to Network Rail.
A related ground of appeal was that, even if the tribunal was right to conclude that the burden of proof did shift, the tribunal was wrong to find Network Rail had failed to discharge that burden simply because the selection criteria it had adopted were applied in a subjective manner.
The correct question for a tribunal to ask is why an employer acted as it did. Acting inconsistently or unreasonably, or applying the criteria subjectively, might well be evidence of discrimination, but it did not establish that discrimination had occurred.
The Employment Appeal Tribunal (EAT) found it highly relevant that Griffiths-Henry was equally qualified as the five successful candidates. Indeed, she was originally appointed ahead of one of them. The EAT concluded therefore that the tribunal was fully entitled to find Griffiths-Henry had established a prima facie case. It then fell to Network Rail to explain why the five white men were selected, and she was not.
However, the EAT disagreed with the tribunal that there were sufficient grounds from which to infer sex and race discrimination. The tribunal had found the selection criteria were objective, but tainted by subjectivity. While this was relevant evidence for a finding of unfair dismissal, the tribunal was wrong to conclude there was discrimination merely on the basis that Network Rail had not acted reasonably. The EAT allowed the appeal on this ground, and the case was remitted back to the same tribunal.
While the tribunal was entitled to find Griffiths-Henry had established a prima facie case of discrimination, there needed to be a very careful analysis of the evidence by the tribunal before it could conclude that inconsistencies in the selection process were evidence of discrimination. It is essential for tribunals in these circumstances to distinguish between unreasonable conduct, which renders a dismissal unfair, and discriminatory treatment. Discrimination could not be inferred in this case simply because the selection criteria had not been applied as objectively as Network Rail claimed. As the EAT said: “Plainly there cannot be a finding of sex or race discrimination every time an employer carries out a selection process unfairly to the detriment of somebody who is black or female.”