BURDEN OF PROOF : CALLING WITNESSES : COMPARATORS : COSTS : REASONS : SEX DISCRIMINATION : INFERENCE OF SEX DISCRIMINATION : LACK OF EXPLANATION OF RAESONING FOR INFERENCE SO AS TO SHIFT BURDEN OF PROFF TO EMPLOYER : reg.3 EMPLOYMENT TRIBUNALS (CONSTITUTION AND RULES OF PROCEDURE) REGULATIONS 2004 : s.63A SEX DISCRIMINATION ACT 1975
An employment tribunal had failed properly to apply the burden of proof requirements under the Sex Discrimination Act 1975 s.63A in that it merely provided assertions for its finding that it could draw an inference of sex discrimination from various incidents, rather than explaining its reasons.
The first appellant car sales franchise (M) and the second appellant sales manager (H) appealed against decisions by the employment tribunal that they had discriminated against the respondent former employee (C) by reason of her sex, and that they should pay C’s costs in respect of an adjourned hearing. C’s functions had been to process enquiries generated by the sales force and to sell extra finance and insurance products. In a meeting attended by C references were made about the low level of business in her area, and when there was no improvement, despite a meeting where C was made aware of the management’s continued concern about her performance, she was dismissed. C’s case was that H had adopted a domineering stance towards her. The tribunal found that it could draw an inference of sex discrimination from four matters, including bullying of C by H because she was a woman. Therefore it found that the burden of proof shifted to M & H. It concluded that they had not discharged that burden. The case was adjourned from the intended hearing date on July 16 as one of M and H’s witnesses (N) did not attend. A witness statement had been signed by N but C wished to call him. M and H submitted that the tribunal (1) failed properly to apply the burden of proof requirements under the Sex Discrimination Act 1975 s.63A; (2) failed to explain why it considered that they had failed to discharge the burden of proof; (3) failed to identify the correct hypothetical comparator in each of the four instances it gave for finding that it could draw an adverse inference of sex discrimination; (4) wrongly took into account its view that M and H had treated C unreasonably as leading to an inference of sex discrimination; (5) in its judgment provided no evidence either that H bullied C because she was a woman or that he subjected other employees to such behaviour; (6) in making its costs order disregarded the overriding objective under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 reg.3 in that it ignored the merits of the claim and the relevance of witnesses; (7) ignored the principle that there was no property in a witness so that both sides were responsible for what evidence they would call.
HELD: (1) In carrying out its evaluation of the evidence under the first stage of the test under s.63A, the tribunal failed to explain its reasoning as to why it drew the inferences it did from the four matters it took into account, Madarassy v Nomura International Plc (2007) EWCA Civ 33, (2007) ICR 867 applied. That was an error of law. (2) The reasons given by the tribunal for the failure of M and H to discharge the burden of proof were devoid of reasoning and simply amounted to assertions. (3) On the facts, the tribunal failed to identify the correct hypothetical comparator in each of the four instances it gave for finding that it could draw an adverse inference of sex discrimination. The tribunal was not obliged to construct a comparator, but when it did, it had to construct the correct one. (4) There were examples of unreasonable treatment of C where the tribunal had failed to construct a hypothetical comparator and failed to ask itself whether such a person would have been treated in the same way. (5) The tribunal should have assessed H’s behaviour against the background of his obvious dissatisfaction with C’s poor performance and the fact that she had failed to follow his instructions on a particular matter, Bahl v Law Society (2004) EWCA Civ 1070, (2004) IRLR 799 applied. (6) The tribunal could not have decided whether N’s absence on July 16 inexplicably led to an order on that day for M to pay the costs of the adjournment. That could only be decided properly once N’s evidence had been taken into account. (7) The Tribunal’s belief that it was entitled to make an immediate order for costs was an error of law. There was no property in a witness and there could not be any general rule of law or procedure which required a party to inform the other party which witnesses it intended to call from those in respect of whom it had served or exchanged witness statements.
MARRIOTT MOTOR GROUP & ORS v L COTTINGTON (2009)