Redundancy, and Discrimination Burden of Proof

[Thanks to Sarah Russell, paralegal at Pattinson & Brewer, for preparing this case summary]

The case of Hammonds LLP v C Mwitta is authority for the proposition that an otherwise fair dismissal is not rendered unfair by reason of the dismissal having taken place within the protected period for consultation in breach of s. 188 TULR(C)A. s.188(8) makes it clear that it does not confer any rights on the employee other than those provided in sections 189 to 192.

The EAT (Slade J) reiterated that the possibility that a respondent "could have" committed an act of discrimination is insufficient to establish a prima facie case so as to move the burden of proof to the respondent for the purposes of s. 54A of the RRA 1976 (Madarassy v Nomura International Plc [2007] ICR 867). The ET must find facts from which they could conclude that there had been discrimination on grounds of race, not there could have been. The EAT emphasised that the absence of an explanation for differential treatment may not be relied upon to establish the prima facie case.

The finding of race discrimination was set aside and the claim remitted for rehearing before a different panel.