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The Supreme Court, discrimination and the reason why

Discrimination, the reason why, and the burden of proof: Hewage  v Grampian Health Board [2012] UKSC 37

David Reade QC

The Supreme Court decision published this morning was the first opportunity for the Court to consider the application of the shifting burden of proof in discrimination cases. The case concerned an appeal from the Aberdeen ET which had found that the Claimant had been discriminated against on the grounds of her sex and race. The passage through the Appellate process means that the case strictly concerns the SDA and RRA, but the principles of course remain the same under the Equality Act.


The Supreme Court Lord Hope (with whom Lady Hale, Lord Mance, Lord Kerr and Lord Reed Agreed) in fact declined an invitation from the Appellant Board to give new guidance and instead approved the observations in Igen v Wong and  Madarassy v Nomura observing that  “The points made by the Court of Appeal [ in those cases]  about the effect of the statute in these two cases could not be more clearly expressed, and I see no need for any further guidance.”


The catch, certainly for Claimants, is in the further observations of the Supreme Court. The Supreme Court approved the former President Mr Justice Underhill’s dicta in Martin v Devonshires Solicitors [2011] ICR 352, para 39, observing that “it is important not to make too much of the role of the burden of proof provisions”. Further observing that “They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination (my emphasis). But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other.”


Thus the emphasis is on fact finding. If the Tribunal can make a positive finding on the reason why the alleged discriminator acted in the way in which they did there is no need to consider the shifting burden of proof.  As observed in Martin, the two stage approach to the analysis in the Barton guidance does not arise if the Tribunal makes a positive fact finding as to the reason why. Clearly the focus then for Respondents in presenting their case is, if possible, to make a positive case on this and the counter-agenda for Claimants is to look for evidential material which casts doubt on this explanation so that there is room for doubt. In many cases this argument will practically nullify the benefit of the shifting burden of proof. This approach gives scant regard to the fact that one of the key areas for the application of the shifting burden of proof is sub-conscious discrimination. Even the articulated explanation “why” may not fully explain all the factors which contribute to a decision. This is, it may be observed, the purpose of the  Barton guidance requiring, if the burden has shifted, detrimental conduct to be shown by the employer to be “in no sense whatsoever” because of a protected characteristic.  Proving the reason why in a manner which is accepted by the Tribunal may yet conceal other factors which had a causative, if not conscious, impact on the decision

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