By: Ed Williams & Tom Coghlin
This talk looks at the legal and practical tools available to employment lawyers to prove or disprove direct discrimination and harassment, exploring in particular three areas:
- how judges apply the burden of proof set out in s136(2)(3) EA 2010;
- the role of comparators in light of the Supreme Court decision of Hewage v Grampian Health Board  ICR 1054;
- how narrowly must the tribunal focus on the state of mind of the individual decision-maker?
Burden of Proof
The wording of s136 EA 2010 remains key. In Igen v Wong  ICR 9311 at , Gibson LJ said that while it is possible to offer practical help, there was no substitute for the statutory language. The point was re-emphasised by Mummery LJ in Madarassy v Nomura International plc  ICR 867 at  that guidance was not a substitute for statutes: “courts do not supplant statutes. Judicial guidance is only guidance”.
- Sections 136(2) and (3) EA 2010 provide for a reverse or shifting burden of proof:
|(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.
(3) This does not apply if A shows that A did not contravene the provision.
- These provisions adopt the Burden of Proof Directive, Council Directive 97/80/EC, now Article 19 of the recast Equal Treatment Directive. The recitals to the Directives make it clear that the purpose of the reversed burden of proof provisions was to make it easier for complainants to establish discrimination. Article 19 provides, so far as relevant, as follows:
- Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.
- Paragraph 1 shall not prevent Member States from introducing rules of evidence which are more favourable to plaintiffs.
- However the relevant EU legislative documents accompanying the Directive make it clear that the burden was to be shared between the claimant and the employer: the measure was “designed to discourage frivolous or vexatious litigation by insisting (emphasis added) that complainants prove that there is an arguable case (“modification” of the burden).”
In line with the wording of the Directive, the reversed burden is classically understood as having two stages:
At the first stage the claimant must prove on the balance of probabilities a prima facie case of discrimination.
Only if the claimant establishes a prima facie case does the burden of proof then shift to the Respondent. At this stage the Respondent must prove that there was no conscious or sub-conscious discriminatory intent behind their conduct.
If a prima facie case has been made out and the explanation for that treatment is unsatisfactory then discrimination has to be found by the ET. It is mandatory. This contrasted with previous position, that the ET was entitled (but not obliged) to find discrimination where there is evidence of a prima facie case.
 Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast).
 EU Commission Competitiveness and Employment Impact Statement (Com 88, 269 Final), section III, para 1. The text continues, curiously, “It is not enough to show only that there has been a difference in treatment on ground of sex…”
 Igen v Wong  ICR 931 per Peter Gibson LJ at .
- In Hewage v Grampian Health Board  ICR 1054, SC, also affirmed that the approach to interpreting the burden of proof remains that set out by the Court of Appeal in Igen and Madarrassy. The ‘revised Barton guidance’ in Igen provides the following:
|(1) Pursuant to section 63A of the 1975 Act, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant which is unlawful by virtue of Part 2, or which, by virtue of section 41 or section 42 of the 1975 Act, is to be treated as having been committed against the claimant. These are referred to below as “such facts”.
(2) If the claimant does not prove such facts he or she will fail.
(3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that “he or she would not have fitted in”.
(4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.
(5) It is important to note the word “could” in section 63A(2). At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.
(6) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts.
(7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 74(2)(b) of the 1975 Act from an evasive or equivocal reply to a questionnaire or any other questions that fall within section 74(2) of the 1975 Act.
(8) Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and, if so, take it into account in determining such facts pursuant to section 56A(10) of the 1975 Act. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.
(9) Where the claimant has proved facts from which conclusions could be drawn that the employer has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the employer.
(10) It is then for the employer to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.
(11) To discharge that burden it is necessary for the employer to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since “no discrimination whatsoever” is compatible with the Burden of Proof Directive.
(12) That requires a tribunal to assess not merely whether the employer has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.
(13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.
“Nothing to offer…”
However, the courts have increasingly deprecated a technical approach to, or an over-reliance on, the burden of proof. In Hewage Lord Hope approved the obiter comments of Underhill P in Martin v Devonshires Solicitors  ICR 352 at  that it is important not to make too much of the role of the burden of proof provisions. Lord Hope said at :
|They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or another.|
Which evidence goes to which stage? Explanations, non-explanations and false explanations
- Whilst a two stage in logic is required, this is not reflected in the way in which evidence is received by tribunals. “Though the analysis must be in two parts, the evidence comes in one bit” (Birmingham City Council v Millwood UKEAT/0564/11 per Langstaff J (P) at ).
- In Igen the Court held that:
|No doubt tribunals will generally wish to hear all the evidence, including the respondent’s explanation, before deciding whether the requirements at the first stage are satisfied and, if so, whether the respondent has discharged the onus shifted to him.|
- In Laing v Manchester City Council  ICR 1519 (approved by the Court of Appeal in Madarassy), Elias P held that in drawing inferences (ie stage one) an ET might have to and should legitimately consider all the evidence put before it prior to concluding whether the burden of proof had shifted to stage 2 for an explanation from the employer. Elias P drew a distinction between facts – that is evidence – and explanation.
- In Madarassy Mummery LJ held at  that “could conclude” (which should now read “could decide”) meant:
|[…] that “a reasonable tribunal could properly conclude” from all the evidence before it. This will include evidence adduced by the complainant in support of the allegations of [in that case] sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment.|
- Mummery LJ went on:
|It would also include evidence adduced by the respondent contesting the complaint. Subject only to the statutory “absence of an adequate explanation” at this stage (which I shall discuss later), the tribunal would need to consider all the evidence relevant to the discrimination complaint; for example, evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required by section 5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment.|
- Mummery LJ made the point at  that
The absence of an adequate explanation for differential treatment of the complainant is not … relevant to whether there is a prima facie case of discrimination by the respondent. The absence of an adequate explanation only becomes relevant if a prima facie case is proved by the complainant. The consideration of the tribunal then moves to the second stage.
- In other words, the presumed lack of explanation for the Respondent’s action is not a matter which can be used to give rise to an inference at Stage 1. Does that mean that the absence of an explanation is always irrelevant at Stage 1?
- The ET does appear to be able to consider inconsistent explanations by the Respondent to shift the burden of proof, namely an explanation that “is frankly inadequate and in particular one that is disbelieved”: Millwood at .
- In Veolia Environmental Services UK v Gumbs UKEAT/0487/12, the giving of inconsistent explanations and an unacceptable account of the facts was held to be sufficient for the burden of proof to pass to the employer. At  HHJ Hand QC said this:
[T]he fact of inconsistent accounts as to why something has happened have for many years, if not centuries, been regarded as a basis from which inferences can be drawn by tribunals of first instance. The statutory provisions as to the reversal of the burden of proof and the jurisprudence, which has grown up around them, exclude actual consideration of the substance of the explanation but if the fact that there have been a number of inconsistent explanations or reasons put forward is to be excluded from consideration as to whether the burden of proving a non-discriminatory explanation should pass to the Employer (and the Claimant’s case, therefore, fails at that stage) then the Employment Tribunal has been put into a strange position in contrast to other courts and tribunals that have to make factual findings. We can see no basis for excluding from consideration the fact that there have been a number of differing and inconsistent reasons advanced for particular behaviour.
- In another case, Solicitors’ Regulation Authority v Mitchell UKEAT/0497/12, HHJ Serota QC underlined the point (at  –  and ), that, in an appropriate case, an untruthful explanation given by an employer can be a matter to be taken into account at the first stage and which causes the burden of proof to shift.
- A lie is highly likely to shift the burden of proof, including in a reasonable adjustments complaint: Gallop v Newport City Council  IRLR 395. But not always:
|[C]ases depend upon their own facts. That there has been a dishonest explanation will not necessarily shift the burden of proof in any particular case. The instant case is an example of that. Lies may be told to cover up a perfectly innocent explanation [at 62].|
Inferences: “something more”
- Mere difference of treatment is not enough to shift the burden of proof, something more is required: Madarassy per Mummery LJ:
|The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.|
“Something more” is therefore needed. However, as Sedley LJ observed in Deman v Commission for Equality and Human Rights  EWCA Civ 1279 at ,
the “more” which is needed to create a claim requiring an answer need not be a great deal. In some instances it will be furnished by non-response, or an evasive or untruthful answer, to a statutory questionnaire. In other instances it may be furnished by the context in which the act has allegedly occurred.
- Sedley LJ’s reference to questionnaires, and paragraph (7) of the Igen guidance, now need to be seen in light of the abolition of the statutory questionnaire procedure in relation to acts of discrimination occurring on or after 6 April 2014. Further to that abolition, ACAS introduced (non-binding) guidance to making and responding to requests for information. Since an inference of discrimination may be drawn from an evasive or false explanation in a document other than a questionnaire (see Dattani v Chief Constable of West Mercia  IRLR 327 and Meister v Speech Design Carrier Systems GmbH (Case C-415/10)  EqLR 602 at ), the use of formal interrogatories, often but not necessarily in accordance with the 6-step ACAS guidance, is a potentially powerful weapon in the armoury of those representing Claimants.
A need for evidence that the proscribed ground was the reason for the treatment?
- The fact that an employer’s behaviour calls for an explanation does not automatically get a claimant to Stage 2: there still has to be reason to believe that the explanation could be that the behaviour was “attributable (at least to a significant extent)” to the prohibited ground (see B v A  IRLR 400, per Underhill P at ).
- There is perhaps a tension with the approach that had been adopted by the previous President of the EAT, Elias J., in Network Rail Infrastructure Limited v Griffiths-Henry  IRLR 865, at  and :
Ms Cunningham [Counsel for the employer] says that in order to establish a prima facie case there must always be some positive evidence that the difference in treatment is race or sex, as the case may be. That seems to us to put the hurdle too high. As the courts have frequently recognised, there are real difficulties in establishing discrimination because of the obvious fact that it is never admitted, and it has to be inferred from the circumstances. The law has tried to strike the balance between on the one hand making such claims impossible to sustain, and on the other not subjecting employers to unwarranted and unfair findings of discrimination. The statutory burden of proof, as interpreted in Igen, by which of course we are bound, directs tribunals how the issue should be approached. Provided tribunals adopt a realistic and fair analysis of the employer’s explanation at the second stage, we see no justification for requiring positive evidence of discrimination at the first stage.
Ms Cunningham says that finding a prima facie case on the evidence established here puts employers in too difficult a situation. She cites the case of somebody who may be not only female and black but perhaps an Anglican or gay, or has some other legally relevant feature which distinguishes her from the remaining members of the group from which selection is made. She says that on the analysis by the tribunal one could in all those cases infer that the reason why she was rejected was each and every one of these distinctive features which distinguished her from the other employees. We accept that the logic would indeed be that there a tribunal would be entitled to find that there was a case to answer in all these examples, if the circumstances were otherwise as in this case. But it will often be easy to rebut. A tribunal will have to have regard to all the evidence when determining whether the employer has rebutted the prima facie case. For example, in most cases the employer will be able to show that he has no interest or knowledge of the religious affiliation of the staff or perhaps their sexual orientation. In some cases it may be shown that the manager alleged to have discriminated on, say, sex grounds has frequently in the past promoted women. That will obviously be powerful evidence rebutting any inference of sex discrimination.
- In considering what inferences can be drawn, it is necessary for the tribunal to adopt a holistic rather than fragmentary approach: to look not only at the detail of the various individual acts of discrimination but also to step back and look at matters in the round. This was emphasised in Anya v University of Oxford  ICR 855 and Qureshi v Victoria University of Manchester  ICR 863, revisited recently by HHJ Eady QC in Fraser v University of Leicester UKEAT/0155/13 in which the principle was described as the requirement “to see both the wood and the trees”.
Skipping stage one?
In Laing Elias P explained at  that an ET does not necessarily fall into error merely because it failed to adopt a two-stage approach:
No doubt in most cases it will be sensible for a tribunal formally to analyse a case by reference to the two stages. But it is not obligatory on them formally to go through each step in each case. As I said in Network Rail Infrastructure v Griffiths-Henry (at para.17), it may be legitimate to infer that a black person may have been discriminated on grounds of race if he is equally qualified for a post which is given to a white person and there are only two candidates, but not necessarily legitimate to do so if there are many candidates and a substantial number of other white persons are also rejected. But at what stage does the inference of possible discrimination become justifiable? There is no single right answer and tribunals can waste much time and become embroiled in highly artificial distinctions if they always feel obliged to go through these two stages.
- In Brown v Croydon London Borough Council  IRLR 259 Mummery LJ (with whom Laws and Kay LJJ agreed) agreed that whilst it is generally good practice to follow the two stage test, there is not necessarily an error of law if the tribunal fails to do so:
In general it is good practice to apply the two stage test and to require the claimant to establish a prima facie case of discrimination before looking to adequacy of the respondent’s explanation for the offending treatment. But there are cases, of which this is one, in which the claimant has not been prejudiced in matters of proof of discrimination by the tribunal omitting express consideration of the first stage of the test, moving straight to the second stage of the test and concluding that the respondent has discharged the burden on him under the second stage of the test by proving that the offending treatment was not on the proscribed ground.
- These cases – and more recently Lord Hope’s remarks in Hewage about the burden of proof provisions having “nothing to offer” in a case where the tribunal is in a position to make positive findings as to the reason for the treatment – suggest that the two-stage process may need to join the hypothetical comparator (of whom, more below) on the list of endangered species: that maybe in many cases it will be enough for tribunals to sail straight to stage two without worrying too much about stage one. Whether that kind of approach disadvantages Respondents or Claimants more is a moot point.
- Something of a blow for the pre-Laing orthodoxy was perhaps struck by Simler J in GMB v Henderson  IRLR 451. She emphasised (at ) that it would be an error of law to make any assumption that Stage 1 had been proved:
|[Stage 1] must be proved on the balance of probabilities by a complainant: see Madarassy. The only assumption permitted is an assumption that there is no adequate explanation for the prima facie case that has been proved: Hewage. Where a tribunal goes straight to the second stage and considers whether the Respondent has proved that there has been no discrimination, it is equally on the basis of a prima facie case having been proved by the complainant and not on any assumption that this is the case.|
- However, in Pnaiser v NHS England  IRLR 170, Simler J, stated that (at 38):
|Although it can be helpful in some cases for Tribunals to go through the two stages suggested in Igen v Wong , as the authorities demonstrate, it is not necessarily an error of law not to do so, and in many cases, moving straight to the second stage is sensible.|
- In Pnaiser, a negative reference case arising out of disability, the ET fell into error by applying a test that required the claimant to show that the only inference that could be drawn was a discriminatory one before it could shift the burden to the respondents. Adopting such an approach would be setting too high a hurdle for claimants. What is required is merely proving facts which could support such an inference could be drawn (at 48-50).
Discharging the burden
- If the burden shifts to the respondent, what must it do to discharge it? The Igen guidance suggests that there must be an “adequate” explanation, which proves on the balance of probabilities that the protected characteristic was not a ground for the treatment in question, and that the respondent would normally be required to produce “cogent evidence”.
- In some cases, a respondent will be able to demonstrate their true reasoning in detail and in concrete terms. But that is not always necessary. Osoba v Chief Constable of Hertfordshire Constabulary UKEAT/0055/13/BA was an age discrimination case concerning a redundancy scoring matrix which the tribunal described as “shambolic” and “at best inconsistent”. The tribunal held that the burden of proof shifted to the respondent to disprove discrimination. The respondent was unable to offer a positive explanation other than to say that they had acted honestly and in good faith and to deny that there had been discrimination. The tribunal accepted this and found that there was indeed no discrimination.
- In the EAT, HHJ McMullen QC upheld the tribunal’s decision. He said:
- […] The central problem with someone who admits to making errors is whether a further explanation is to be wrung from her. Sometimes those errors are explained in mitigation, “I was overworked”, “I had family care responsibilities” but that is not the case here. The simple proposition advanced by Miss Pritchard [the alleged discriminator] is that she did what she thought was right in accordance with the policy and she was exposed in the course of the trial to the errors which she had made which she accepted.
- The Tribunal accepted her account that she had acted honestly. Most particularly in the face of the direct accusation of manipulation in order to do down the Claimant because of his age the Tribunal accepted the good faith of her account. Is that enough? Does she have to create some further explanation? We consider it would be wrong for a Respondent to have to give a yet further possibly dissembling explanation in order to meet the case. We accept Mr Ley-Morgan’s analogy to explanations above such as overwork or family circumstances, but there simply may be cases where there is nothing more to say, no further explanation than “Well, I got it wrong and I take responsibility for that.”
- The evidence required to discharge its burden of proof will depend on the strength of the prima facie case proved by the claimant: see Network Rail Infrastructure Limited v Griffiths-Henry  IRLR 865 at . The weight of the burden on the respondent will not be great if the positive case advanced by the claimant is relatively weak or implausible.
The need for a comparator
- At the heart of the definition of direct disability discrimination is a comparison. S13 Equality Act 2010 provides:
A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.
- As Rimer LJ said in Lockwood v Department of Work and Pensions and Cabinet Officer  EWCA Civ 1195 at :
|In a race discrimination case, that means that if a black complainant is alleging discrimination at work on the ground of his race, the comparator will usually be a white person who is otherwise in the same, or a not materially different, position. It is obvious that once such a comparator has been identified, the tribunal cannot hold the “relevant circumstances” of the two cases to be different on the ground that the comparator is white and the complainant is black and so regard the comparison as invalid. The whole purpose of the comparison is as an aid to seeing whether or not the way in which the comparator was, or would have been, treated in the relevant circumstances supports the Claimant’s allegation that he was subjected to less favourable treatment on the ground of the protected characteristic.|
- In Lockwood the ET erred by using age differences amongst over 35s and under 35s to reject a relevant straightforward comparator in age (ie an over 35). The ET had held that the younger comparator belonged to a generation whose members could adjust more easily and rapidly to the loss of jobs than their colleagues in their late thirties. The ET said that this meant that her circumstances were materially different from those of the comparator. The Court of Appeal disagreed: the supposed points of differentiation between claimant and comparator were in each case intimately bound up with age.
- The Government explained its decision to retain the concept of a comparator in the definition of direct discrimination during the consultation process concerning the EA 2010 on the basis that, “… discrimination is principally about equal rather than fair treatment and courts and tribunals have flexibility on how to define comparators in each case. Removing the comparator would make it harder to ascribe actions to inequitable treatment based on a protected characteristic, which is a key and long-standing principle governing discrimination law”.
No material difference
- S23(1) EA 2010 provides that:
|On a comparison of cases for the purposes of section 13 [direct discrimination]… there must be no material difference between the circumstances relating to each case.|
- The need for a comparator whose circumstances are not materially different from the claimant’s has, however, been eroded in a number of ways.
- First, as Underhill P pointed out in Amnesty International v Ahmed  ICR 1450 at , there are cases where the treatment itself is inherently discriminatory, so that an examination of the alleged discriminator’s reasoning becomes irrelevant, and a comparator may be dispensed with. Examples might include exclusion from a shop displaying a “no blacks” sign; inherently discriminatory comments; or cases where the admitted reason for the treatment is inherently discriminatory.
- Second, the “no material difference” rule does not mean that the comparator needs to be identical to the claimant. The question whether a comparator is appropriate is one of “fact and degree”: Hewage at .
- Third, even where the comparator’s circumstances differ materially from those of the claimant, the comparator may still be useful in constructing a hypothetical comparator. In Watt v Ashan  ICR 82 Lord Hoffmann said at :
It is probably uncommon to find a real person who qualifies … as a statutory comparator. Lord Rodger’s example at para 139 of Shamoon of the two employees with similar disciplinary records who are found drinking together in working time has a factual simplicity which may be rare in ordinary life. At any rate, the question of whether the differences between the circumstances of the complainant and those of the putative statutory comparator are “materially different” is often likely to be disputed. In most cases, however, it will be unnecessary for the tribunal to resolve this dispute because it should be able, by treating the putative comparator as an evidential comparator, and having due regard to the alleged differences in circumstances and other evidence, to form a view on how the employer would have treated a hypothetical person who was a true statutory comparator. If the tribunal is able to conclude that the respondent would have treated such a person more favourably on racial grounds, it would be well advised to avoid deciding whether any actual person was a statutory comparator.
- Fourth, there is an increasing tendency to go even further than this, and to head straight to the reason for the treatment, rather than become entangled with complex issues of comparators, real or hypothetical.
- Elias P said in Islington London Borough Council v Ladele  ICR 387 at :
|The logic of Lord Hoffmann’s analysis [in Ahsan] is that if the Tribunal is able to conclude that the respondent would not have treated the comparator more favourably, then again it is unnecessary to determine what are the characteristics of the statutory comparator? This chimes with Lord Nicholls’ observations in Shamoon to the effect that the question whether the claimant has received less favourable treatment is often inextricably linked with the question why the claimant was treated as he was. Accordingly, at para 11:
“employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was.”
…. The construction of the statutory comparator has to be identified at the first stage of the Igen principles. But it may not be necessary to engage with the first stage at all.
- This approach of course has its roots in the well-known decision of the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary  ICR 337.
- Elias P’s approach to comparators in Ladele has been followed by subsequent Presidents of the EAT: Underhill P in Chondol v Liverpool City Council  UKEAT/0298/08; Langstaff P in Dr G Kalu v Brighton & Sussex University Hospitals NHS Trust & Others UKEAT 0609/12/BA  Eq LR 488.
- The prevailing view then in the ET and the appellate courts is that attempts to identify an actual comparator or to construct a hypothetical comparator often distract the parties and the Employment Tribunal from focusing on the ultimate “reason why” question. It is that latter approach which is usually the more useful.
- In Kalu, the EAT held that whilst the ET may have erred in its application of the comparator, that was not a sufficient ground of appeal, where that had been a clear finding as to the reason for the treatment:
|The ultimate question to be addressed in the case of unfavourable treatment said to be discriminatory is to ask why the treatment was as it was. It may be that an answer cannot be given directly to that question. There may be room, in such a case, for inferring what the true reason was – and the burden of proof provisions would generally lead to a conclusion that the Respondent could not satisfy the Tribunal that there has been no discrimination of the type alleged. Where, however, the reason for the treatment is established, on balance of probability, to the satisfaction of the Tribunal it becomes unnecessary to ask for a real or a hypothetical comparator.|
- Underhill P has been particularly trenchant in his approach to the subject of hypothetical comparators.
- In D’Silva v NATFHE  IRLR 412 the claimant alleged that he had been subjected to race discrimination in two respects: the failure of the union to provide him with legal representation and its failure to reply to correspondence. The Employment Tribunal concluded that there had been no discrimination. It held that the union had declined to provide legal representation because the claimant had expressed a lack of trust and confidence in the legal team and that the problems with correspondence had been due to a genuine oversight.
- The claimant appealed to the EAT, contending that the tribunal had failed to properly consider the position of a hypothetical comparator.
- Underhill P was critical of the claimant’s analysis and his reliance on a hypothetical comparator as it was plainly unnecessary in light of the Employment Tribunal’s unchallengeable findings of fact as to the reason for the union’s actions, which wholly excluded any link with discrimination. He said at :
It might reasonably have been hoped that the Frankensteinian figure of the badly-constructed hypothetical comparator would have been clumping his way rather less often into discrimination appeals since the observations of Lord Nicholls in Shamoon v Chief Constable of the Royal Ulster Constabulary  IRLR 285 (see in particular paragraph 11 at p.289) and the decision of this tribunal, chaired by Elias J, in Law Society v Bahl  IRLR 640, at paragraphs 103–115 (pp.652–654). We regard it as clear, taking the reasons as a whole, that the tribunal made an express finding that the only reason why the union acted in the way complained of was that (as regards the initial decision and the first review decision) the appellant had expressed a lack of trust and confidence in his legal team and (as regards the subsequent review) that Mr Bryan had genuinely overlooked the appellant’s further correspondence. Those findings necessarily exclude the possibility that the acts complained of were done, even in part, on racial grounds (or on grounds which would constitute victimisation). If that finding is unassailable it necessarily answers also the question whether he would have been treated more favourably if he had been white or if he had not previously supported Mr Deman or complained of racial discrimination. It is accordingly unnecessary to consider in detail the passages in which the tribunal referred to the nature of the hypothetical comparator. We would however say that we can see no sign that it failed to appreciate any essential feature of the necessary comparison.
- Fifth, Elias P also made clear in Ladele that there will be some cases where attempting a comparative exercise is not only unnecessary but positively unhelpful, and will lead to completely the wrong answer:
|Furthermore, there is a particular situation where a focus on how the comparator was or would have been treated can be positively misleading. This arises because it is now well established that there will be unlawful discrimination where the prohibited ground contributes to an act or decision even though it is not the sole or principal reason for the act or decision. It follows that there will inevitably be circumstances where an employee has a claim for unlawful discrimination even though he would have been subject to precisely the same treatment even if there had been no discrimination, because the prohibited ground merely reinforces a decision that would have been taken for lawful reasons. In these circumstances the statutory comparator would have been treated in the same way as the claimant was treated. Therefore if a tribunal seeks to determine whether there is liability by asking whether the claimant was less favourably treated than the statutory comparator would have been, that will give the wrong answer.|
- In other words as long as a decision is tainted by discrimination the comparative approach will be a “meaningless comparison that produces the wrong answer. The focus should have been on the reason for the treatment bearing in mind that there may be more than one”: Henderson per Simler J [at 70].
- A justified sense of grievance of discrimination (ie where a dismissal process was tainted by discrimination) can amount to less favourable treatment, even where the comparator would also have been dismissed: Henderson at . Indeed, it is often difficult to separate less favourable treatment from the detriment itself: Deer v University of Oxford  ICR 1213, CA per Elias LJ at :
|In fact it seems to me – as it did to Underhill LJ as he said when granting permission to appeal – that although the concepts of less favourable treatment and detriment are distinct, there will be very few, if any, cases where less favourable treatment will be meted out and yet it will not result in a detriment. This is because being subject to an act of discrimination which causes, or is reasonably likely to cause, distress or upset will reasonably be perceived as a detriment by the person subject to the discrimination even if there are no other adverse consequences. That is perhaps more starkly the position in cases of discrimination on race or sex grounds where it can be readily seen that the act of discrimination of itself causes injury to feelings. But similar reasoning applies to victimisation discrimination. This is also an important protection for an employee or ex-employee, and a real and burning sense of injustice or unfairness may be experienced by someone who is discriminated against on this ground.|
The characteristics of the hypothetical comparator
- Where an ET does select a hypothetical comparator what are the relevant comparable circumstances of that comparator? In Stockton-on-Tees BC v Aylott  ICR 1278, Mummery LJ held at :
|The relevant circumstances and attributes of an appropriate comparator should reflect the circumstances and attributes relevant to the reason for the action or decision, which is complained of.|
- What might be observed about this approach is, once again, the primacy of the “reason why” question: it arguably amounts, in effect, to a matter of firstly identifying the reason for the treatment and then reverse-engineering the characteristics of the relevant comparator from there. On that basis, comparators become little more than a “sense check” rather than the principal component of a direct discrimination case which they were once thought to be.
The individual decision-maker
- A series of recent cases has explored the question of the degree to which the tribunal must focus on the mind of the individual decision-maker, or whether the tribunal can conduct a wider analysis, looking at the motivations (conscious or unconscious) of other individuals. As we shall see the tendency has been to insist on an increasingly narrow analysis.
- The first case is IPC Media Ltd v Millar  IRLR 707, a case involving discrimination arising from disability. C was not considered for two alternative posts during a redundancy exercise. The ET drew an inference that this was because of her past and anticipated future absences due to her disability. However, there was no evidence that the decision-maker was aware of the claimant’s history of absence. Underhill P said that
as with other species of discrimination, an act or omission can occur ‘because of’ a proscribed factor as long as that factor operates on the mind of the putative discriminator (consciously or subconsciously) to a significant extent.
Underhill P accepted the submission that
you cannot be influenced (consciously or unconsciously) by something of which you are unaware
and said that
the starting-point … is to identify the individual(s) responsible for the act or omission in question.
- Henderson also addressed the question of knowledge, particular in the context of religion or belief, where it would not immediately be obvious to the employer that there was a protected characteristic in the first place [at 84]. Simler J held that in the context of religious or philosophical belief it must be “obvious” to the decision maker that the protected characteristic is even engaged before it can be said to have operated on their mind [at 84/85].
- However, might there still be cases of direct discrimination (or victimisation) where the protected characteristic, or as the case may be the protected disclosure or act, although unknown to an ultimate individual decision-maker, continued to be sufficiently causally relevant to the decision in question to allow the claimant’s claim to succeed? That possibility was recognised by in Western Union Payment Services UK Ltd v Anastasiou UKEAT/0135/13, the EAT (HHJ Eady QC and members) a whistleblowing case, at paragraph :
We can see that – hypothetically – there may be cases where there is an organisational culture or chain of command such that the final actor might not have personal knowledge of the protected disclosure but where it nevertheless still materially influenced her treatment of the complainant.
- However, the EAT went on (at  – ):
In such cases, however, it would still be necessary for the ET to explain how it had arrived at the conclusion that this is what had happened.
Looking at the ET’s findings in the present case, there is no finding that any of the relevant decision-takers/actors (Mr Crawford, Ms Walsh and Mr Williams) had any knowledge of the protected disclosure […] The evidence before the ET was that the circulation of Mr Fallek’s investigation report was very limited; we have seen no evidential basis to support a conclusion that its content was generally known amongst the Respondent’s “senior management”. Moreover, on the ET’s findings, we have seen nothing that would provide any basis for linking the Claimant’s disclosure to the decisions taken by Mr Crawford, Ms Walsh or Mr Williams.
Although not expressly stated, it appears that the ET inferred that the decisions involved in the first, second and third detriments were in some way influenced (albeit perhaps indirectly) by the protected disclosure. … [T]he ET’s reasons fail to demonstrate how it concluded that the protected disclosure materially influenced those decisions.
- What both Millar and Anastasiou clearly highlight is the need for a close examination of what the relevant individual decision-makers knew as to the relevant protected characteristic (or protected disclosure or protected act, as the case may be), and, if there is no such knowledge, then there must at the very least be a clear rationale for finding that the protected characteristic was part of the reason for the treatment notwithstanding the decision-maker’s ignorance of it.
- Moreover, the EAT’s recognition in Anastasiou of possible exceptions to the general rule identified in Millar is debatable.
- In the discrimination context itself, the EAT (HHJ Peter Clark and members) in Lewis v HSBC Bank plc UKEAT/0364/06 at - emphatically rejected a suggestion that there was any principle of “unconscious” (as distinct from “subconscious”) discrimination. It was argued on behalf of a claimant that where there had been a discriminatory omission of information from an internal investigation report, and that omission was not thereafter rectified during the course of an internal disciplinary process, the ultimate decision was tainted by discrimination even though that omission did not operate on the minds of the subsequent decision makers since they were unaware of it. That submission was rejected as “wholly misconceived”. To find that this would amount to discrimination, the EAT held, would amount to
establishing strict liability for unlawful discrimination, holding the discriminator responsible for a state of affairs of which he has no knowledge. That is not the effect of the discrimination legislation.
- Last year the Court of Appeal has addressed the issue in the important case of CLFIS (UK) Ltd v Reynolds  ICR 1010, CA. The leading judgment was given by Underhill LJ, with whom Jackson and Longmore LJJ agreed. The claimant worked for Canada Life as Chief Medical Officer. She complained that the termination of her consultancy contract, when she was aged 73, was an act of direct age discrimination. The tribunal dismissed her claim, holding that the decision-maker, Mr Gilmour believed that the claimant was not delivering the service required and that she was not capable of change. The tribunal found that these beliefs were formed by Mr Gilmour from his own knowledge of the claimant and they were not age-based stereotypical assumptions.
- The EAT overturned the tribunal’s decision. It held that the tribunal had been wrong to focus on Mr Gilmour’s state of mind, and had erred by failing to examine the minds of others (Mr McMullen and Mr Newcombe) who had earlier suggested that the claimant’s contract be terminated and who had shaped and informed Mr Gilmour’s decision.
- In the CA, Underhill LJ began by considering the tribunal’s finding that the sole decision-maker in the case was Mr Gilmour. He recognised (at ) that:
If this were in truth a case where the decision to terminate the Claimant’s contract had been made jointly by Mr Gilmour and others the Tribunal would have had to be concerned with the motivation of all those responsible, since a discriminatory motivation on the part of any of them would be sufficient to taint the decision.
- He concluded at - that the tribunal’s finding on that point was unassailable:
The findings in question show only that Mr Gilmour reached his decision as a result of information provided, and opinions expressed, by Mr McMullan and Mr Newcombe, both in the Bristol presentation and in later discussions with Ms Deeks which (it is to be inferred) she reported back to Mr Gilmour. That is not the same as them being parties to the decision. Supplying information or opinions which are used for the purpose of a decision by someone else does not constitute participation in that decision. There may be cases where it is difficult to distinguish between the two situations, but the Tribunal was fully entitled to treat this case as one where Mr Gilmour did indeed make the relevant decision on his own.
We are accordingly concerned not with joint decision-making but with a different situation, namely one where an act which is detrimental to a claimant is done by an employee who is innocent of any discriminatory motivation but who has been influenced by information supplied, or views expressed, by another employee whose motivation is, or is said to have been, discriminatory.
- Underhill LJ identified two possible approaches to this situation: the “composite approach” whereby the acts of X could be brought together with the motivation of Y, and the “separate acts” approach which focuses on each stage of decision-making separately.
- Underhill LJ undertook a detailed analysis of the merits and disadvantages of each approach, ultimately coming down in favour of the “separate acts” approach. Accordingly, while the respondent might have been liable for discrimination in the hands of Mr McMullen and/or Mr Newcombe (in making discriminatory suggestions about the termination of the claimant’s conduct), of which dismissal was a natural and direct consequence such that the claimant might recover her ultimate losses, that claim had not been pleaded and so could not succeed.
- The approach set out in the above cases has far-reaching consequences, including the following:
- The analysis of a case must begin with the identification of who the relevant decision maker/s was or were. Was it one individual, or more than one, and if so who? Care will be needed in, for example, drafting dismissal letters, ET3s and witness statements. Respondents may also wish to seek particulars of the claimant’s case at an early stage of proceedings.
- It is necessary to consider what the individual decision-maker knew. Did s/he know of the relevant protected characteristic, protected act or protected disclosure? If not, this may provide a complete defence even if others within the organisation did have the relevant knowledge.
- Inferences and the burden of proof: if the key is the state of mind of the individual decision-maker, what relevance would there be in other more generic matters for the drawing of inferences of discrimination, or in the respondent’s discharge of its burden at stage 2? What relevance would, say, the past treatment of other cases have if this was the first such case dealt with by this particular decision-maker? Or a failure (pursuant to a decision taken elsewhere in the respondent’s organisation) to respond to a questionnaire or interrogatories?
- Time limits: On the CLFIS approach, the “real” discriminatory decisions may turn out to have been taken much earlier in the process than the ultimate decision (eg dismissal) which is the source of the claimant’s complaint. It will often be unsafe for claimants to assume that time will run from the date of dismissal. Tribunals may be expected to show some sympathy in relation to extensions of time for claimants who are caught out, but neither claimants nor their advisors will wish to find themselves at the mercy of the tribunal in these cases.
- Remedy: Issues of remedy may arise. Did any loss actually flow from the relevant decision? Would the ultimate decision-maker have made the same finding in any event?
- The logic of the CLFIS v Reynolds approach would seem to apply equally to various other types of claim in which there is a focus on the mind of the alleged discriminator:
- Discrimination arising from disability – the question being, did the thing arising in consequence of the disability operate on the decision-maker’s mind? – see Millar.
- Victimisation – the question being, did the protected act operate on the decision-maker’s mind? – see Nagarajan v London Regional Transport  1 AC 501;
- Whistleblowing detriment claims – Although they have a different origin (domestic law rather than EU law), the CA has held that essentially the same enquiry into the alleged wrongdoer’s mental processes should be undertaken in whistleblowing detriment claims as in victimisation claims: Fecitt v NHS Manchester  ICR 372. Accordingly there seems to be no reason why the logic of CLFIS v Reynolds would not equally apply to whistleblowing claims. As noted above, Anastasiou was a whistleblowing case.
- However whistleblowing dismissal cases (claims for automatic unfair dismissal under s103A Employment Rights Act 1996) are treated differently. In Royal Mail Group v Jhuti UKEAT/0020/16, the person who decided to dismiss the Claimant was misled by the Claimant’s line manager, to whom the Claimant had made a protected disclosure, who engineered her dismissal because she had done so. Relying on Reynolds, the tribunal dismissed the Claimant’s complaint of automatic unfair dismissal.
- The EAT (Mitting J) reversed that decision, making the point that discrimination claims and unfair dismissal claims sit in different statutory contexts, and that it is not safe to read across from one to the other. Mitting J held that, in unfair dismissal cases,
- In the vast majority of cases all that is necessary to discern is the set of facts known to the person who made the decision to dismiss. He or she will be the sole, or where the decision is a joint one, they will be the joint human agents of the employer who determine the decision. There is, however, no binding statement in the authorities that the mind of that person or those persons must in all circumstances be equated with that of the employer
- … I am satisfied that, as a matter of law, a decision of a person made in ignorance of the true facts whose decision is manipulated by someone in a managerial position responsible for an employee, who is in possession of the true facts, can be attributed to the employer of both of them.
- An appeal by the employer against the EAT’s decision is due to be heard by the Court of Appeal in the next few months. For the time being, at least, this case provides a good illustration of the differences in approach taken in unfair dismissal and discrimination claims.
- Whilst discrimination law offers practitioners a complex array of tools in the form of shifting burdens of proof and statutory comparators to choose from, the simple fact is that many tribunals are reluctant to use them. Taking their cue from the appellate courts they prefer instead to go straight to what the reason for the treatment was. While this may be seen as an application of pragmatic judicial common sense over the complexities of the law, whether this approach is actually warranted by statute is perhaps a moot point.
- It is also debatable whether it is Claimants or Respondents who benefit more from the simplified approach, which is now in favour. So far as the two-stage test is concerned, Elias P in Laing held (at  – ) that to go straight to the “reason why” question – in other words to assume that the burden of proof may have shifted – causes no prejudice to an employee but rather risks, if anything, prejudice to the employer. That may be so in many cases, but in others, Claimants may be disadvantaged by ignoring the two-stage test which, was, after all, introduced in the first place in order to recognise and mitigate the effect of the difficulty of proving discrimination.
 Mummery LJ went on to make similar remarks at .
The 6 “steps” for a questioner are: (1) set out the questioner’s and responder’s details; (2) identify the protected characteristic; (3) give a description of treatment; (4) identify the type of discrimination; (5) explain why the treatment is discriminatory; (6) additional questions.
The 3 “steps” for a responder are: (1) agree or disagree and set out own version of events; (2) set out justification; (3) respond to other questions.
 “The Equality Bill – Government response to the Consultation”, July 2008 (Cm 7454) at [7.10].
 See eg SRA v Mitchell UKEAT/0497/12 at .
 Affirmed by CA:  ICR 532.
 See Kuzel v Roche Products Ltd  IRLR 530 CA at .
ED WILLIAMS & TOM COGHLIN