Friday, 27 July 2012

Discrimination Burden of Proof

[Thanks to Laurie Anstis of Boyes Turner who is standing in for Daniel Barnett during holiday absence, and to Michael Reed, Employment Legal Officer at the Free Representation Unit, for preparing this case summary]

Tribunals may draw inferences of discrimination by considering how a Claimant was treated compared to others. Even if the situations compared are not precisely the same, such inferences may justify shifting the burden of proof to the Respondent. So found the Supreme Court in Hewage v Grampian Health Board.

Mrs Hewage was a dentist at the Aberdeen Royal Infirmary. She said she had been bullied and harassed because she was a Sri Lankan women.

The tribunal agreed, in part because of the Infirmary's treatment of two white men: Professor Forrester and Mr Larmour.

Professor Forrester also had issues with the individual who bullied Mrs Hewage, but their roles were altered so they did not meet. Mr Larmour replaced Mrs Hewage. He received cooperation and assistance that she did not.

Mrs Hewage's circumstances were not exactly the same as either comparator. But there was sufficient similarity, given the stark difference in treatment, to justify the tribunal's inference of discrimination. It was then for the Respondent to prove they had not discriminated, which they failed to do.

The Supreme Court declined to give further guidance, saying the approach set out in Igen v Wong and Madarassy v Nomura was clear. They also noted that the burden of proof rules 'had nothing to offer' where a tribunal could make 'positive findings of fact'. 

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