Hewage v Grampian Health Board

Factual and Procedural Background

The Respondent, a Sri-Lankan born British citizen and specialist orthodontist, commenced employment with Company A at The Hospital in 1993 and became Head of Service for the Orthodontics Department in 1996. She alleged that she was bullied and harassed chiefly by Employee A (service manager) and Employee B (clinical nurse manager). Following an acrimonious meeting on 9 September 2003, the Respondent raised concerns with Executive A, but, dissatisfied with management’s reaction, resigned her Head of Service role in November 2003 and ultimately her employment in March 2005.

In September 2005 she lodged proceedings in the Employment Tribunal (“ET”) claiming constructive unfair dismissal under the Employment Rights Act 1996 and discrimination on the grounds of sex and race under the Sex Discrimination Act 1975 and Race Relations Act 1976. During the ET hearing Company A conceded constructive unfair dismissal. The ET also upheld the discrimination claims, relying principally on comparisons with Comparator 1 (a male consultant in another department) and Comparator 2 (a male successor in Orthodontics).

By majority, the Employment Appeal Tribunal (“EAT”) set aside the ET’s discrimination findings, holding that the Respondent had not provided adequate notice of the breadth of her claims and that the ET had misapplied the burden-of-proof provisions derived from Igen v Wong. On appeal, the Inner House of the Court of Session reinstated the ET’s decision and remitted one narrow question to the original ET, which reaffirmed its earlier conclusions. Company A appealed to the Supreme Court.

Legal Issues Presented

1. Whether the ET applied the correct two-stage burden-of-proof test under section 63A of the 1975 Act and section 54A of the 1976 Act.
2. Whether Comparator 1 and Comparator 2 were suitable “like-for-like” comparators for establishing prima facie discrimination.
3. Whether additional judicial guidance was required on the application of the statutory burden-of-proof provisions.
4. Whether the Inner House erred in remitting the outstanding issue to the original ET instead of a differently constituted tribunal.

Arguments of the Parties

Appellant’s Arguments (Company A)

• The ET could only infer discrimination from a true like-for-like comparison; the factual differences between the Respondent and the comparators were so substantial that no inference could lawfully be drawn.
• The ET misdirected itself by assuming, rather than determining, that the burden of proof had shifted, contrary to Igen v Wong.
• The ET failed to examine the “mental process” behind the alleged discriminatory acts as required by Shamoon v Chief Constable of the RUC.
• If the appeal were dismissed, any remitted matters should go to a fresh tribunal because the original ET’s jurisdiction was “spent.”

Respondent’s Arguments

• The ET had expressly compared the Respondent with appropriate male comparators and found unexplained differential treatment sufficient to shift the burden of proof.
• The EAT impermissibly substituted its own factual assessment for that of the ET.
• The Inner House was correct to find that the ET’s reasoning complied with the statutory scheme and existing appellate guidance; no further guidance was necessary.
• The original ET was best placed to deal with the narrow remit, having heard all the evidence.

Table of Precedents Cited

Court's Reasoning and Analysis

Comparators: Determining whether Comparator 1 and Comparator 2 were appropriate was a question of fact and degree. Despite factual differences, the ET had ample evidence of markedly different managerial responses to similar interpersonal conflicts, justifying their use as comparators.

Burden of Proof: The Supreme Court (per Judge Hope) held that the ET’s reference to making an “assumption” simply mirrored the instruction in Igen: at stage one, the tribunal assumes the absence of an adequate explanation while evaluating the primary facts. The ET had carefully examined evidence before shifting the burden.

EAT’s Errors: The EAT majority adopted an unduly technical critique, overlooked the ET’s full factual analysis and effectively substituted its own view on comparators, contrary to established appellate restraint.

Need for Further Guidance: The Court declined to issue new guidance, endorsing the clarity of the existing statutory text and the explanations in Igen and Madarassy. Re-stating or elaborating upon them would risk confusion.

Remit to Original Tribunal: Remitting the narrow question to the same ET was appropriate; that tribunal had heard all evidence, and efficiency favoured its continued involvement.

Holding and Implications

HOLDING: The appeal is DISMISSED.

Consequently, the Inner House’s order reinstating the ET’s findings of sex and race discrimination stands, and Company A must pay the Respondent’s costs in the Supreme Court. The decision confirms the sufficiency of existing burden-of-proof guidance and emphasises appellate reluctance to interfere with tribunals’ factual assessments where they are not perverse. No new precedent was created, but the judgment reinforces the application of Igen and subsequent appellate authority.