Wong v Igen Ltd (formerly Leeds Careers Guidance) and Others; Emokpae v Chamberlin Solicitors and another; Webster v Brunel University

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Peter Gibson
Judgment Date18 February 2005
Neutral Citation[2005] EWCA Civ 142
Docket NumberCases No: A2/2004/1141 A2/2004/2758

[2005] EWCA Civ 142

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEALS FROM EMPLOYMENT APPEAL TRIBUNALS

Royal Courts of Justice

Strand, London, WC2A 2LL

Before

Lord Justice Kennedy

Lord Justice Peter Gibson and

Lord Justice Scott Baker

Cases No: A2/2004/1141

A2/2004/1397

A2/2004/2758

Between
Igen Ltd. (Formerly Leeds Careers Guidance)
1st Appellant
Ms. Beverley Parsons
2nd Appellant
Ms. Liz Green
3rd Appellant
Ms. Christine Mcniven
4th Appellant
and
Kay Wong
Respondent
and
CHAMBERLIN SOLICITORS
1st Appellant
MR. T EMEZIE
2nd Appellant
and
MS. I EMOKPAE
Respondent
and
BRUNEL UNIVERSITY
Appellant
and
MS. GURDISH WEBSTER
Respondent
and
The Equal Opportunities Commission,
Interveners
The Commission for Racial Equality and
The Disability Rights Commission

Miss Elizabeth Slade Q.C. and Mr. Richard Leiper (instructed by Messrs Lupton Fawcett of Leeds) for the Appellants

Mr. Antony White Q.C. and Mr. James Laddie (instructed by Ford & Warren of Leeds) for the Respondent and

Mr. Mathew Purchase (instructed by C T Emezie Solicitors) for the Appellants

The Respondent did not appear and was not represented and

Mr. Neil Vickery (instructed by Messrs Eversheds LLP of Chancery Lane) for the Appellant

Mr. Paul Troop (instructed by Messrs Thompsons of Bloomsbury) for the Respondent

Mr. Robin Allen Q.C. and Ms. Anna Beale (instructed by the 3 Commissions) appeared for the Interveners

Lord Justice Peter Gibson (giving the judgment of the court):

Introduction

1

These are three appeals from the Employment Appeal Tribunal ("the EAT"). The circumstances of each differ widely from those of the others, but they all raise questions on the interpretation and application of the statutory provisions comparatively recently introduced into the Sex Discrimination Act 1975 ("the SDA") and the Race Relations Act 1976 ("the RRA") respectively as to the shifting of the burden of proof in direct discrimination cases under those Acts.

2

A similar statutory provision has recently been introduced into the Disability Discrimination Act 1995 ("the DDA"). Similar provisions are also to be found in Reg. 29 of the Employment Equality (Sexual Orientation) Regulations 2003 and in Reg. 29 of the Employment Equality (Religion or Belief) Regulations 2003.

3

Because of the possible impact which our decisions in these appeals may have on practice in discrimination cases, the Equal Opportunities Commission, the Commission for Racial Equality and the Disability Rights Commission successfully applied to this court for permission to intervene. We are grateful to Mr. Robin Allen Q.C. and Ms. Anna Beale, appearing for those Commissions, for their assistance.

4

From the statistics provided to us by Mr. Allen it is apparent that a significant proportion of the Originating Applications presented to an Employment Tribunal ("ET") each year raise discrimination complaints. In just under 20,000 cases (17% of all cases) commenced in 2003–4 the main complaint was of discrimination, and although there are no figures available of how many of those cases concerned allegations of direct, rather than indirect, discrimination, it is likely that the majority would have been cases of alleged direct discrimination.

The law

5

The new provisions in the Discrimination Acts are the following:

(A) SDA

S. 63A (inserted by the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001) provides:

"(1) This section applies to any complaint presented under section 63 to an employment tribunal.

(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent –

(a) has committed an act of discrimination against the complainant which is unlawful by virtue of Part II, or

(b) is by virtue of section 41 or 42 to be treated as having committed such an act of discrimination against the complainant,

the tribunal shall uphold the complaint unless the respondent proves that he did not commit, or, as the case may be, is not to be treated as having committed, that act."

(B) RRA

S.54A (inserted by the Race Relations Act 1976 (Amendment) Regulations 2003) provides:

"(1) This section applies where a complaint is presented under section 54 and the complaint is that the respondent:

(a) has committed an act of discrimination, on grounds of race or ethnic or national origins, which is unlawful by virtue of any provision referred to in Section 1 (1B)(a) (e) or (f) or Part IV in its application to those provisions, or

(b) has committed an act of harassment.

(2) Where on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent –

(a) has committed such an act of discrimination or harassment against the complainant, or

(b) is by virtue of section 32 or 33 to be treated as having committed such an act of discrimination or harassment against the complainant,

the tribunal shall uphold the complaint unless the respondent proves that he did not commit the act or, as the case may be, is not to be treated as having committed that act."

(c) DDA

S. 17A (1C) (inserted by the Disability Discrimination Act 1995 (Amendment) Regulations 2003) provides:

"Where, on the hearing of a complaint under subsection (1) the complainant proves facts from which the tribunal could, apart from this subsection, conclude in the absence of an adequate explanation that the respondent has acted in a way which is unlawful under this Part, the tribunal shall uphold the complaint unless the respondent proves that he did not so act."

6

It has long been recognised that proving discrimination claims may pose great difficulties for claimants. Before the new provisions were inserted into the SDA, the RRA and the DDA respectively, ETs generally followed the guidance given by this court in a case under the RRA, King v Great Britain – China Centre [1992] ICR 516. Neill L.J. (with whom Nourse L.J. and Sir John Megaw agreed) said this (at pp 528–9):

"From these several authorities it is possible, I think, to extract the following principles and guidance. (1) It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail. (2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption that "he or she would not have fitted in." (3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 65(2)(b) of the Act of 1976 from an evasive or equivocal reply to a questionnaire. (4) Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but, as May L.J. put it in North West Thames Regional Health Authority v. Noone [1988] I.C.R. 813, 822, "almost common sense." (5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case."

7

That guidance received the express approval of the House of Lords in Glasgow City Council v Zafar [1998] ICR 120. In that case Lord Browne-Wilkinson acknowledged that remarks which he made when, as Browne-Wilkinson J., he presided in the EAT in two earlier cases, Khanna v Ministry of Defence [1981] ICR 653 and Chattopadhyay v Headmaster of Holloway School [1982] ICR 132, went too far and should not be followed. Thus in Chattopadhyay it was said:

"the law has been established that if an applicant shows that he has been treated less favourably than others in circumstances which are consistent with that treatment being based on racial grounds, the industrial tribunal should draw an inference that such treatment was on racial grounds, unless the respondent can satisfy the industrial tribunal that there is an innocent explanation."

However, it might be thought that, with the introduction of the new provisions set out in para. 5 above, those remarks are now consistent with the Discrimination Acts as amended.

8

European law had in the meantime been moving in the direction now enacted in the new provisions. In a series of cases, culminating in Enderby v Frenchay Health Authority [1994] ICR 112 and Specialarbejderforbundet I Danmark v Dansk Industry [1996] ICR 51, the European Court of Justice ("the ECJ") ruled that in the field...

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