IGEN Ltd & Ors v Wong

Factual and Procedural Background

This judgment concerns three appeals from the Employment Appeal Tribunal (EAT) involving the interpretation and application of statutory provisions introduced into the Sex Discrimination Act 1975 (SDA), the Race Relations Act 1976 (RRA), and the Disability Discrimination Act 1995 (DDA) regarding the shifting of the burden of proof in direct discrimination cases. The appeals arise from separate employment tribunal claims alleging discrimination on grounds of sex, race, and disability respectively. The Equal Opportunities Commission, the Commission for Racial Equality, and the Disability Rights Commission intervened due to the potential impact of the decisions on discrimination case law and practice.

Legal Issues Presented

1. How should the statutory provisions shifting the burden of proof in direct discrimination claims under the SDA, RRA, and DDA be interpreted and applied?
2. Whether the statutory amendments codify or alter the pre-existing law concerning the burden of proof in discrimination cases.
3. Whether Employment Tribunals (ETs) should consider the respondent’s explanations at the first stage of the burden of proof analysis or only at the second stage.
4. The correct construction of the phrase “facts from which the tribunal could… conclude in the absence of an adequate explanation” in the statutory amendments.
5. The relevance and necessity of identifying a comparator in establishing less favourable treatment in discrimination claims.
6. Whether the Barton guidance on the burden of proof requires modification in light of the statutory amendments and recent case law.

Arguments of the Parties

Appellants' Arguments (Igen Ltd. and others)

• The Employment Tribunal erred by failing to specify the primary facts relied upon to justify drawing an inference of discrimination.
• The Tribunal made speculative leaps from limited facts, particularly relying on racial differences without sufficient evidential basis.
• The Tribunal failed to consider adequate explanations provided by the appellants and did not construct a hypothetical comparator to assess the claim properly.
• The Tribunal overlooked the complainant’s and her representative’s unhelpful conduct and failed to explain how discrimination was found to be subconscious.
• The finding of discrimination was inconsistent with the favourable finding regarding the Personal Adviser Review (IPR) conducted in good faith.

Respondent's Arguments (Kay Wong)

• No error of law was disclosed by the Employment Tribunal or the EAT’s upholding of its decision.
• The Tribunal properly found facts showing unreasonable conduct by the appellants which lacked adequate explanation, justifying an inference of unlawful discrimination.
• The Tribunal considered the complainant’s and her representative’s conduct and found it did not undermine the discrimination finding.
• Unexplained unreasonable conduct is capable of giving rise to an inference of discrimination under the statutory framework and Barton guidance.

Appellants' Arguments (Chamberlin Solicitors and Mr. Emezie)

• The Employment Tribunal’s finding that the complainant was dismissed due to rumours of a relationship did not amount to dismissal on the ground of sex.
• The Tribunal’s conclusion was unreasoned and failed to identify an appropriate comparator as required by the SDA.
• By analogy with the decision in Martin v Lancehawk Ltd., dismissal due to rumours related to personal relationships is not necessarily sex discrimination.
• The appropriate comparator would be a male employee rumoured to have had a homosexual relationship with the manager, who would likely have been treated similarly.

Respondent's Arguments (Ms. Emokpae)

The respondent did not appear or was not represented before the Court of Appeal.

Appellants' Arguments (Brunel University)

This information was not available in the provided opinion.

Respondent's Arguments (Ms. Webster)

This information was not available in the provided opinion.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court analysed the statutory amendments shifting the burden of proof in discrimination claims under the SDA, RRA, and DDA, emphasizing a two-stage process for Employment Tribunals (ETs). At the first stage, the complainant must prove facts from which the ET could conclude, in the absence of an adequate explanation, that the respondent committed an unlawful act of discrimination. The Court clarified that at this stage the ET must assume there is no adequate explanation and focus on primary facts and reasonable inferences. At the second stage, the burden shifts to the respondent to prove, on the balance of probabilities, that the treatment was not on prohibited grounds at all.

The Court rejected the argument that the statutory amendments merely codified existing law, holding instead that they substantively altered the burden of proof by imposing on respondents the obligation to disprove discrimination once a prima facie case is established. The Court rejected an EAT construction that the complainant need only prove the possibility that the respondent committed the act, holding that the complainant must prove the probability that the respondent did so.

The Court endorsed the Barton guidance with modifications, particularly emphasizing that ETs must assume no adequate explanation at the first stage and that the burden of proof shifts only after this threshold is met. It stressed the importance of comparators in discrimination claims, noting that hypothetical comparators with relevant attributes may be used, and failure to identify comparators may undermine the ET’s reasoning.

In the three appeals, the Court applied these principles as follows:

• In the first appeal (Wong v Igen Ltd.), the Court found no error in the ET’s inference of discrimination based on unexplained unreasonable conduct and upheld the dismissal of the appeal.
• In the second appeal (Emokpae v Chamberlin Solicitors), the Court held that the ET failed to properly identify the comparator and reason for dismissal on the ground of sex, leading to dismissal of the claim at the first stage.
• In the third appeal (Webster v Brunel University), the Court found the EAT erred in its construction of the statutory provisions and restored the ET’s decision dismissing the discrimination claim.

Holding and Implications

Holding:

• The appeal in Igen Ltd. v Wong is DISMISSED.
• The appeal in Chamberlin Solicitors v Emokpae is ALLOWED, the order of the EAT and the Employment Tribunal’s decision are set aside, and the originating application is dismissed.
• The appeal in Brunel University v Webster is ALLOWED, the order of the EAT is set aside, and the Employment Tribunal’s decision is restored.

Implications: The Court’s decisions clarify that the statutory amendments to the burden of proof in discrimination claims impose a substantive change requiring complainants to prove facts from which discrimination can be inferred absent an adequate explanation, and then shifting the burden to respondents to disprove discrimination. The Court emphasized the importance of proper identification of comparators and the need for ETs to assume no adequate explanation at the first stage. These rulings guide Employment Tribunals and Employment Appeal Tribunals in handling discrimination claims consistently with the statutory framework and European directives. No new precedent beyond the interpretation of the burden of proof provisions was established, but the decisions will affect the conduct and assessment of discrimination claims in employment law.