Factual and Procedural Background
The Appellant, of Asian origin, was employed by the Respondent at a hospital as a consultant orthodontist from 1993 and became Head of Service in 1996. The dispute arose from the conduct of a service manager employed by the Respondent, who had responsibilities over multiple departments including the Appellant's. The Employment Tribunal (ET) found that the Respondent unfairly dismissed the Appellant and unlawfully discriminated against her on grounds of sex and race, based on sections of the Sex Discrimination Act 1975 and the Race Relations Act 1976. The Respondent conceded unfair dismissal but appealed the discrimination findings. The Employment Appeal Tribunal (EAT) allowed the appeal, overturning the discrimination findings. The Appellant then appealed this decision to the Court of Session. The Court was asked to review whether the EAT had erred in its conclusions regarding the relevancy of the discrimination claim, the choice of comparators, and the application of the burden of proof. The case was remitted to the ET for reconsideration of discrimination issues limited to certain comparator-based claims.
Legal Issues Presented
- Whether the discrimination claims related to the Appellant's dismissal were properly before the Employment Tribunal and thus relevant to the case.
- Whether the Employment Tribunal correctly identified and applied appropriate comparators for assessing alleged discrimination.
- Whether the Employment Tribunal correctly applied the burden of proof and the two-stage test for discrimination claims as established in case law such as Igen v Wong.
- Whether the Employment Appeal Tribunal erred in substituting its own judgment for the Employment Tribunal's factual findings on comparators and discrimination.
- The appropriate procedural disposition following the Employment Appeal Tribunal’s decision.
Arguments of the Parties
Appellant's Arguments
- The discrimination claims were properly included in the original ET application and should not have been deemed irrelevant.
- The Employment Tribunal correctly found that the comparator cases of two white male consultants were appropriate for assessing discrimination.
- The ET correctly applied the burden of proof regime, including the inference of discrimination in the absence of an adequate explanation by the Respondent.
- The cumulative effect of discriminatory acts justified the finding of discrimination, but the ET should reconsider whether the conclusion stands when limited to the comparator-based issues.
- The appeal should be allowed, the EAT’s decision quashed, and the case remitted to the original tribunal rather than a new one.
Respondent's Arguments
- The discrimination claims related to dismissal were not properly pleaded and thus irrelevant.
- The comparators relied upon were inappropriate due to material differences in circumstances.
- The Employment Tribunal erred in its application of the burden of proof and the Igen test.
- The Employment Appeal Tribunal’s decision to allow the appeal and dismiss the discrimination claims was correct.
- If the appeal were allowed, the case should be remitted to a differently constituted tribunal for reconsideration.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Madarassy v Nomura International plc [2007] IRLR 247 |
Definition of "could conclude" in discrimination claims; burden shifting when no adequate explanation is given. |
Used to explain the legal standard for drawing inferences of discrimination at the first stage of the test. |
| Igen v Wong [2005] IRLR 258 |
Two-stage burden of proof test in discrimination claims. |
Guided the Court’s analysis of the Employment Tribunal’s application of the burden of proof. |
| Ladbrokes Racing Ltd v Traynor [2007] UKEAT/0067/06/MT |
Relevancy of discrimination claims in tribunal applications. |
Distinguished by the Court as factually different and not applicable to the present case. |
| Salamis (Marine and Industrial) v Forbes 2006 SC 621 |
Limits on appellate intervention in Employment Tribunal factual findings. |
Supported the principle that the EAT should not substitute its judgment for the ET’s on factual matters unless perverse or irrational. |
| Piggott Brothers & Co Ltd v Jackson [1992] ICR 85 |
Appellate review of tribunal findings. |
Reinforced the limited scope for appellate courts to overturn factual findings of tribunals. |
| Chief Constable of West Yorkshire v Vento [2001] IRLR 124 |
Standards for appellate review of tribunal decisions. |
Referenced to support the approach to reviewing Employment Tribunal findings. |
| Nagarajan v London Regional Transport [1999] 4 All ER 65 |
Discrimination may be conscious or unconscious. |
Used to explain the objective nature of discrimination findings. |
| St Christopher Fellowship v Walters-Ennis [2010] EWCA Civ 921 |
Requirement for "something more" to infer discrimination beyond differential treatment. |
Applied to assess the sufficiency of evidence for discrimination in the present case. |
Court's Reasoning and Analysis
The Court first addressed the EAT's conclusion that discrimination claims related to dismissal were irrelevant, rejecting this view and finding that the Appellant’s pleadings and the conduct of the hearing demonstrated that the claims were properly before the Employment Tribunal. The Court distinguished the cited Ladbrokes case based on factual differences and procedural conduct.
The Court then examined the burden of proof application, endorsing the Employment Tribunal’s approach consistent with established case law, including Igen, which requires the tribunal at the first stage to assume no adequate explanation exists and to consider whether an inference of discrimination can be drawn from the facts.
Regarding comparators, the Court found that the Employment Tribunal’s determination that the two white male consultants were appropriate comparators was a factual judgment not open to appellate substitution unless irrational or perverse. The EAT had improperly substituted its own view, which was an error of law.
The Court identified the "something more" required to draw an inference of discrimination as the Respondent’s ineffective and delayed response to the service manager’s conduct, including failure to discipline and delayed investigation reports, as well as differential treatment in support and procedural responses between the Appellant and the comparators.
Because the Employment Tribunal had based its discrimination conclusion on a cumulative effect of multiple matters, some of which lacked proper foundation, the Court could not determine whether the conclusion would stand if limited to the comparator-based issues. Therefore, the Court decided to remit the case to the original Employment Tribunal to reconsider the discrimination claims solely on the three relevant comparator issues identified.
Holding and Implications
The Court ALLOWED the appeal, QUASHED the decision of the Employment Appeal Tribunal, and REMITTED the case to the Employment Tribunal for reconsideration limited to the discrimination issues related to the two comparator consultants and the relevant interview and support issues.
The Court emphasized that the Employment Tribunal’s original factual findings were not to be disturbed except on grounds of irrationality, and that the EAT had erred by substituting its own judgment on factual matters. The direct effect is that the Employment Tribunal must reconsider the discrimination claims with a focus on the properly pleaded comparator issues. No new precedent was established beyond reaffirming appellate limits and procedural correctness in discrimination claims.