1) CHAMBERLIN SOLICITORS 2) MR T EMEZIE v MS I EMOKPAE [2004] UKEAT 0989_03_1506

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0989_03_1506Case No Appeal No. UKEAT/0989/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
1) CHAMBERLIN SOLICITORS 2) MR T EMEZIEAPPELLANTSMS I EMOKPAERESPONDENT
Before
His Honour Judge McMullenDate 15 June 2004
[1]APPEARANCES For the Appellants MR G HARRISON (of Counsel) Instructed by: Employment Law Associates Ltd 13 Corrigan Avenue Coulsdon Surrey CR5 2QP For the Respondent MR M PURCHASE (of Counsel) Instructed by: Messrs Chamberlin Solicitors 358-360 Goswell Road London EC1V 7LQ SUMMARY The guidance on the burden of proof in a sex discrimination case as determined in Barton -v- Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332 EAT would be followed with one adjustment to provide that, on transfer of the burden, a respondent must prove gender had no significant influence on the outcome. The guidelines were correctly applied by an Employment Tribunal which held that an assistant in a legal practice was unlawfully discriminated against when she was dismissed following rumours of an affair with a senior solicitor in the firm in circumstances where a male assistant would not have been so treated. HIS HONOUR JUDGE McMULLEN QC Introduction This case is about the burden of proof in a sex discrimination case following Barton -v- Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332 EAT , to which we suggest there should be one adjustment in the guidelines. Dismissing the appeal, our conclusions on guideline (10) are in paragraphs 32-39, and on guideline (12) in paragraph 40, below. The judgment represents the view of all three members. We will refer to the parties as follows: Ms Emokpae as the Applicant, the First Respondent as Chamberlins and the Second Respondent as Mr Emezie. Following our ruling at the outset of this appeal to allow a Notice of Appeal to be lodged by Mr Emezie out of time, this is an appeal by the Respondents in those proceedings against a Decision of an Employment Tribunal sitting at London Central, Chairman Miss E J Potter, registered with Extended Reasons as a Reserved Decision on 21 October 2004, following a two day hearing and a day in Chambers. The Respondents were represented by Mr Emezie, and the Applicant by Counsel previously instructed. Today the Applicant is represented by Mr Gordon Harrison and the Respondents by Mr Matthew Purchase, of Counsel. The Applicant claimed sex discrimination against both Respondents; the Respondents denied the claim. A claim for wrongful dismissal was withdrawn.[2]The central issue was to determine, between conflicting evidence, whether the Applicant was dismissed because of rumours about a relationship between her and Mr Emezie, constituting, it is said, less favourable treatment on the ground of sex. Following our hearing, discussion and decision-making in chambers all on 15 March 2004, a reserved judgment of the EAT, Rimer J and members in Martin v Lancehawk Limited UKEAT/O525/03 was delivered on 22 March 2004. Very properly, Mr Purchase drew our attention to it and we invited both sides to make submissions in writing which they did. Any later submission, however unforeseen and apposite (as here, we stress), causes logistical difficulties for a tripartite, part-time, majority lay bench like ours. The subsequent consideration and discussion of these submissions by our tribunal has contributed to the delay, but we hope the cogency, of this judgment. The Decision[3]The Tribunal decided that the Applicant was unlawfully discriminated against on the ground of sex by Chamberlins and that Mr Emezie knowingly aided that unlawful act. At a further hearing on 13 November 2003, where the Respondents were represented by a solicitor, Chamberlins were ordered to pay the Applicant £4000 and Mr Emezie to pay £500 for injury to the Applicant's feelings, in each case with interest on top. Chamberlins were ordered to pay the Applicant £100 in costs for having acted unreasonably. There is no separate appeal against the remedies decision. The Respondents appeal against the liability decision. Directions sending this appeal to a full hearing were given by His Honour Judge Ansell in Chambers. The legislation[4]The Sex Discrimination Act 1975 provides in relevant part:
"1(1) In any circumstances relevant for the purposes of any provision of this Act … a person discriminates against a woman if - (a) on the ground of her sex he treats her less favourably than he treats or would treat a man ….. 5(3) A comparison of the cases of persons of different sex … must be such that the relevant circumstances in the one case are the same, or not materially different, in the other. 6(2) It is unlawful for a person in the case of a woman employed by him at an establishment in Great Britain to discriminate against her - (b) by dismissing her, or subjecting her to any other detriment." 41(1) Anything done by a person in the course of his employment shall be treated for the purposes of this Act as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval." 42(1) A person who knowingly aids another person to do an act made unlawful by this Act shall be treated for the purposes of this Act as himself doing an unlawful act of the like description. 63A(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. … 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."
The Facts[5]The Applicant is Nigerian. She was employed by Chamberlins as a legal assistant from 29 November 2002 until her dismissal on 3 February 2003 for unsatisfactory performance. She was employed at £15,000 a year, for 17.5 hours a week. She also worked part time at a charity. Chamberlins is a small firm of solicitors in Islington, North London, specialising in immigration. At the material time it comprised Mrs Chamberlin, the principal, Mr Emezie the Second Respondent, who was the office manager and five solicitors with two legal assistants.[6]The Tribunal regarded itself initially as required to resolve a simple conflict of evidence between the Applicant and Mr Emezie; there was no relevant documentation. It resolved almost all of the conflicts against one or both of the Respondents, so it rejected the contention that the Applicant was at interview "woefully inexperienced"; that she was provided with a contract of employment which she failed to return; that considerable importance was given by the two Respondents to staff being present during business hours; that the Applicant was consistently warned about poor attendance; that she regularly sought inconvenient changes in her working hours; and that she regularly warned about her unsatisfactory performance, her timekeeping, and her misuse of the telephone. In only one respect was the evidence of the Respondents preferred: that use of the telephone was a normal part of immigration work. The Applicant was thus able to use the telephone but did not misuse it, nor was misuse drawn to her attention, nor was it justified dismissal.[7]In December 2002 there was already a culture of rumour and gossip within Chamberlins. In her evidence before the Tribunal, which differed from that in her Originating Application, the Applicant contended that Mr Emezie showed interest in her beyond normal professional contact, including invitations to go clubbing and descriptions by him of the family life that the Applicant and he might share together. While expressing reservations about the Applicant's evidence, the Tribunal found that Mr Emezie did act towards the Applicant in a way which might have provoked rumours of a relationship. He bought perfume for her. He gave her lifts home. They had a drink together on at least one occasion. Another employee passed on a rumour that a friend of hers had been made pregnant by Mr Emezie and sought to know about the relationship alleged to exist between the Applicant and Mr Emezie.[8]The Tribunal accepted the Applicant's case that on 3 February 2003 she was dismissed for taking part in office gossip and spoiling Mr Emezie's good name, so that he could no longer justify his relationship with her. The Tribunal was not satisfied that the Applicant was dismissed because of poor performance or poor timekeeping; it did not find that there was a "last straw" incident justifying premature termination of the Applicant's probationary period. The Tribunal took account of the requirements for good practice embodied in a legal aid franchise, which this firm had, and that the Respondents dismissed the Applicant with no warning. The Tribunal held this:
"The case was not about whether there was an inappropriate relationship between the Second Respondent and the Applicant, the nuances of acceptable workplace relationships, on which the Applicant's evidence had changed: it was about the reason for the Applicant's dismissal on which her evidence had remained consistent. It was not uncommon in the Tribunal's experience for allegations of discrimination only to emerge in the Originating Application."
[9]The Tribunal decided that the Applicant had established sufficient facts upon which an inference could be drawn of discrimination, that is unwise familiarity by Mr Emezie, and then said this:
"13 First of all the Tribunal considered whether the Applicant had proved on the balance of probabilities facts from which the Tribunal could conclude that the Respondents had committed an act of discrimination which was unlawful under Part II of the Sex Discrimination Act 1975. They bore in mind the advice of the Employment Appeal Tribunal that the outcome of this analysis would usually depend on inferences it was proper to draw from the primary facts found by the Tribunal. They also bore in mind that at this stage they did not have to reach a definitive determination that such facts would lead to the conclusion that there was an act of unlawful discrimination. They were looking at the facts to see what inferences could be drawn. The Tribunal concluded that the Applicant had proved such facts. She had established a climate of rumour and gossip. She had established unwise familiarity on the part of the Second Respondent. She had proved a summary dismissal without any compliance with due process in a franchised legal aid firm expected by the terms of their franchise to operate good employment practice. There was sufficient evidence to conclude that the Applicant could have been unlawfully dismissed by the Second Respondent because of rumours about a relationship between her and the Second Respondent. This was less favourable treatment on the grounds of sex: such rumours would not have arisen and would not have led to her dismissal if she had been male. 14 The Tribunal were therefore satisfied that the burden of proof moved to the Respondents. They found that the Respondents failed to discharge the burden on them of proving on the balance of probabilities that the treatment was in no sense whatsoever on the grounds of sex…."
[10]The Tribunal drew inferences and noted that the Respondents had not produced cogent evidence to discharge the burden of proof. It thus found the Chamberlins guilty of sex discrimination and Mr Emezie liable for knowingly aiding Chamberlins to do that, pursuant to section 42. The Tribunal applied the judgment of the EAT in Barton , where guidance was given for the treatment of a sex discrimination case under the change in the burden of proof, following 2001, at paragraph 25.(1) Pursuant to section 63A of the Sex Discrimination Act 1975, it is for the Applicant 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 Respondents have committed an act of discrimination against the Applicant which is unlawful by virtue of Part 2 or which by virtue of section 41 or 42 SDA is to be treated as having been committed against the Applicant. These are referred to below as "such facts"(2) If the Applicant does not prove such facts he or she will fail.(3) It is important to bear in mind in deciding whether the Applicant 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 Applicant 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 is "could". 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 proved by the Applicant to see what inferences of secondary fact could be drawn from them.(6) 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 Sex Discrimination Act from an evasive or equivocal reply to a questionnaire or any other questions that fall within section 74(2) of the Sex Discrimination Act see Hinks -v- Riva Systems EAT/501/96.(7) 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) SDA. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.(8) Where the applicant has proved facts from which inferences could be drawn that the Respondents have treated the Applicant less favourably on the grounds of sex, then the burden of proof moves to the respondent.(9) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed that act.(10) To discharge that burden it is necessary for the respondent 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.(11) That requires a Tribunal to assess not merely whether the respondent 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 any part of the reasons for the treatment in question.(12) 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." The Respondents' Submissions[11]On behalf of the Respondents it is contended that the Employment Tribunal made three errors.(1) The Tribunal failed to apply the correct test for treatment "on the ground of sex" applying a "but for" test rather than a "reason why" test.(2) It failed to identify a correct comparator in accordance with section 5(3).(3) It failed correctly to apply the burden of proof. Barton was incorrectly decided in two respects.[12]As to the correct legal test, the Applicant was required to show that her gender was the reason why the Second Respondent dismissed her and that this was in his mind at the time. The Tribunal based its Decision upon the rumours rather than upon the Applicant's gender. The Tribunal was not entitled to base its Decision even upon rumours, which it held would not have arisen had the Applicant been male, for there was no evidence to support such an inference.[13]As to the comparator, it is contended that the Tribunal failed to place a hypothetical comparator in the same circumstances as the Applicant. Given that the rumours were about an affair between Mr Emezie and the Applicant, there was no basis to support the finding that similar rumours might not arise in respect of a reversed position.[14]As to the burden of proof, the Applicant must make out a prima facie case. It was submitted by Mr Purchase that the EAT in Barton , requiring the Respondent to prove "no discrimination whatsoever" had placed too heavy a burden on the Respondent. This was not required by Article 2 of the Burden of Proof Directive and was a misunderstanding of the use of the words in that Directive. All that was required was that gender was a significant influence on the outcome. Further, the standard of evidence required - "cogent" - was again placing too heavy a burden on the Respondent. The Applicant's case[15]On behalf of the Applicant it was submitted that the Tribunal had correctly found that a case of discrimination had been made out sufficient to cause the burden to transfer. The primary findings of fact included unwise familiarity, the circulation of rumours in a climate of gossip, summary dismissal of the Applicant and no adequate reason therefor. It was contended that the Tribunal had found a relevant comparison, although it was accepted that no argument had been addressed to the Tribunal that the relevant actual comparator was Mr Emezie.[16]It was incorrect to argue that the dismissal was based on rumours and not on rumours based upon a sexual relationship. It was open to the Tribunal to find that such rumours would not have arisen if the Applicant had been male. The Tribunal had correctly focused on the mental processes of the alleged discriminator, i.e. Mr Emezie, which were gender based. In requiring cogent evidence, the Tribunal had not insisted on a higher standard of proof than was required by the statute. The legal principles[17]We consider that the legal principles are derived from the following authorities.[18]Generally speaking, interpretations of similar words under the anti-discrimination statutes should be consistent, and it is possible to read across from a race discrimination case to a sex discrimination case: see, for example, Rhys-Harper -v- Relaxion Group Plc [2003] ICR 867 HL .[19]The approach to the central question of discrimination is that of Lord Nicholls in Nagarajan -v- London Regional Transport [1999] IRLR 572 who was to say as follows:
"In every case it is necessary to enquire why the complainant received less favourable treatment. This is the crucial question. Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job? Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator ……"
[20]The approach to causation was again given by Lord Nicholls in West Yorkshire Police -v- Khan [2001] IRLR 830 at paragraph 29 "Causation is a slippery word, but normally it is used to describe a legal exercise… Sometimes [the court] may apply a "but for" approach. A causation exercise of this type is not required either by s.1(1)(a) or s.2. The phrases "on racial grounds" and "by reason that" denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? ….. The reason why a person acted as he did is a question of fact."[21]Although Nagarajan was a victimisation case, the reasoning of Lord Nicholls applies to a direct discrimination case on the grounds of gender.[22]Discrimination is established if gender was "a significant influence" on the outcome: see Lord Nicholls in paragraph 19 of Nagarajan and Lord Steyn at paragraph 34.[23]Although Simon Brown LJ said in Nelson -v- Carillion Services Ltd [2004] IRLR 428 CA at paragraph 26 that the effect of section 63A on the burden of proof was to "codify rather than alter the pre-existing position established by the case law," that case concerned indirect discrimination and Simon Brown LJ did not say anything about direct discrimination. The Court of Appeal certainly had a copy of the judgment in Barton before it gave judgment (this is made clear by the judgment of the EAT in Pratt -v- Sanden International (Europe) Ltd (EAT/0529/02 22 October 2003) at paragraph 19). No adverse comment was passed upon it.[24]Subject to what we say below about guidelines (10) and (12) in Barton , Barton remains good law, with the addition of the rider provided by the EAT in University of Huddersfield -v- Wolff (EAT/0596/02 16 July 2003) where Burton P said this:
"26 The right course, therefore, for the Tribunal, had it set out at first to find material facts, but in any event even though it did not quite follow that format, would be to address section 63A and, in particular, to conclude that the burden moves where the applicant has proved facts from which inferences could be drawn that the Respondents have treated the Applicant less favourably on the grounds of sex. It must therefore arrive at a conclusion that there is a prima facie case that the respondent has treated the applicant less favourably on the grounds of sex. Once it has done that, then it passes to consider the respondent's explanations; it must, if it has not already done so, make findings of fact, or draw inferences from findings of fact, for the purposes of concluding whether any of the explanations put forward by the Respondent satisfy them, the burden being on the Respondent to show that the less favourable treatment was not on the grounds of sex."
[25]In making a comparison for the purposes of deciding whether there has been less favourable treatment of one person as against another, all the material circumstances must be the same or not materially different, for, as Lord Scott put it in Shamoon -v- Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 at paragraph 108:
"108. First, the statutory definition of what constitutes discrimination involves a comparison: "…. treats that other less favourably than he treats or would treat other persons"
. The comparison is between the treatment of the victim on the one hand and of a comparator on the other hand. The comparator may be actual ("treats") or may be hypothetical ("or would treat") but "must be such that the relevant circumstances in the one case are the same, or not materially different, in the other" (see Article 7). If there is any material difference between the circumstances of the victim and the circumstances of the comparator, the statutory definition is not being applied. It is possible that, in a particular case, an actual comparator capable of constituting the statutory comparator can be found. But in most cases a suitable actual comparator will not be available and a hypothetical comparator will have to constitute the statutory comparator. In Khan one of the questions was as to the circumstances that should be attributed to the statutory hypothetical comparator. It is important, in my opinion, to recognise that Article 7 is describing the attributes that the Article 3(1) comparator must possess."[26]A more forceful expression of this position was given by Lord Hope in Macdonald -v- Advocate General for Scotland [2003] IRLR 512 HL at paragraph 70 where he said:
"…..I agree that, for a valid sex discrimination analysis, the comparison must change only the sex of the complaining individual and must hold all the other circumstances constant"
Conclusions[27]We will deal first with the contention that the Tribunal posed the wrong statutory test for comparison between the Applicant and the hypothetical male. The essence of the Tribunal's finding is that the Applicant was not dismissed by Mr Emezie because of a rumour. She was dismissed against a background of rumours indicating she was having an affair with Mr Emezie, when had she been a man she would not have been dismissed. The Tribunal did not look at a direct comparison with Mr Emezie himself, a complicated position since he was also the dismissing officer, because no argument had been addressed to that effect. It was looking at the mental processes of Mr Emezie to discover the reason for his decision and came to that finding. As Lord Nicholls says, that is a matter of fact. The Tribunal was not guilty of applying a "but for" test, but plainly investigated the thought processes of Mr Emezie.[28]Nor did it consider an inappropriate comparator. Again, leaving aside what might be thought to be the most obvious comparator, Mr Emezie himself, it was open to the Tribunal to form the view that the Applicant was treated less favourably than a hypothetical male worker about whom rumours were circulating that he was engaged in an affair with another employee.[29]Both parties made submissions on the application of Martin v Lancehawk Limited (above). In that case, the EAT decided a previous judgment of the EAT, Wall J and members at a preliminary hearing in Stuart Kaufmann t/a Kaufmann & Co Solicitors v Schofield (unreported) "was wrong". In both of those cases, the male sexual partner of a junior female employee who were together engaged in an affair dismissed her, or caused her dismissal. In the Kaufmann case, the Employment Tribunal had decided that the correct comparator was a heterosexual junior male employee with whom by definition the senior employee would not have had an affair. So "but for" the applicant's gender, she would not have been dismissed. The EAT held as inapt a comparison with a homosexual junior male employee having an affair with the same senior male employee, and a heterosexual junior male employee having an affair with a senior female employee,[30]In the second case, Martin , the EAT held the "but for" approach was wrong in law. We agree with that for the reasons given above, analysing Lord Nicholls' speeches, for the question to be answered is the "reason why" the treatment occurred. It rejected as inapt a comparison with a junior heterosexual male employee. By its reference to Kaufmann it would also have declared as inapt a comparison with a female employee with whom the senior male had not had an affair. It held as "more apt" a comparison with a homosexual junior male employee, the comparison rejected in Kaufmann . Yet this "would still not have provided much help in answering the crucial question, namely why was [the applicant] dismissed. … In the present case, the answer to the crucial question is obvious, and was nothing to do with [the applicant's] sex." The EAT regarded as crucial the breakdown in trust, because the applicant had lied to the senior male employee, as being the reason for the dismissal. Yet this lie consisted of her telling the truth about the affair to her spouse. The EAT reminded itself that "the reasons why human beings act towards others in the ways they do are many and various" but did not put in its context the telling of lies to a sexual partner in an employment relationship. With respect, it did not analyse how the straightforward duty of trust and confidence applied or had to be modified in that complex quadripartite situation of two current marriages and a secret affair between a senior male and a junior female employee.[31]We distinguish Martin where the Employment Tribunal found the breakdown in the affair was the reason for the dismissal. In our case, the Employment Tribunal was careful to find the reason for dismissal was integrally related to the way a man would have been treated: he would not have been dismissed when rumours surfaced, but the Applicant was. That makes explicit the factual situation illustrated in all three of these cases, that where an extra-marital affair is revealed or rumoured, between a junior female employee and a senior male employee able to assert power at the workplace, the woman suffers. From as long ago as Skyrail Oceanic v Coleman [1981] ICR 864 CA, it has been clear that such conduct, born of gender-stereotypical attitudes, is unlawful.[32]Finally, turning to the burden of proof, we consider that there is some force in the argument that the guidelines in Barton require some adjustment. They have already undergone refinement, as has been seen in the University of Huddersfield -v- Wolff judgment. We take, first, the criticism of the passage in guideline (10) which is founded on the Burden of Proof Directive. It was submitted by Mr Purchase that the Tribunal had misconstrued the use of the words "no discrimination whatsoever" in the Directive: that phrase does not concern the definition of, or the ingredients in, discrimination, but merely the forms of discrimination. We accept that submission. Where the phrase appears both in the Burden of Proof Directive and in the Equal Treatment Directive, it is followed by the words "either directly or indirectly" which are words qualifying the term "discrimination."[33]The EAT in Barton appears to have been led to its conclusion by consideration of Article 2.1 of the Burden of Proof Directive (97/80/EC) which provides as follows:
"For the purposes of this Directive, the principle of equal treatment shall mean that there shall be no discrimination whatsoever based on sex, either directly or indirectly"
[34]That formulation of the principle of equal treatment derives from the Equal Treatment Directive (Directive 76/207/EEC), Article 2.1 where the phrase "no discrimination whatsoever on grounds of sex …." first appears. Prior to the change in the burden of proof, pursuant to the Burden of Proof Directive and section 63A, it had already been decided in Nagarajan that there may be a range of causes contributing to discrimination, for Lord Nicholls said as follows:
"Decisions are frequently reached for more than one reason. Discrimination may be on racial grounds even though it is not the sole ground for the decision. A variety of phrases, with different shades of meaning, have been used to explain how the legislation applies in such cases: discrimination requires that racial grounds were a cause, the activating cause, a substantial and effective cause, a substantial reason, an important factor. No one phrase is obviously preferable to all others, although in the application of this legislation legalistic phrases, as well as subtle distinctions, are better avoided so far as possible. If racial grounds or protected acts had a significant influence on the outcome, discrimination is made out."
[35]When transposing the Burden of Proof Directive into section 63A of the Sex Discrimination Act , Parliament did not intend to change the forms or the definitions of discrimination. The change in the burden of proof in direct discrimination, at least, is designed to remove some of the obstacles in the way of applicants. In the 1976 Directive the forms are direct and indirect (Article 2), and victimisation (Article 7). In the Act, they include discriminatory practices, instructing and pressurising others to discriminate, aiding discrimination and constructive and vicarious liability for others' discrimination (sections 37-42). Directive 2002/73 amends the 1976 Directive. In it, the forms and definitions include harassment, sexual harassment and instructions to discriminate. It must be transposed into our law by 5 October 2005. In both the earlier Directives where there the word "discrimination" appears, it means any form of discrimination, direct or indirect, and (by reference to Article 7) victimisation. Thus sex discrimination in all its forms is unlawful.[36]Where the respondent produces no adequate explanation for facts which the applicant has proved could amount to discrimination, the burden is transferred to the respondent of proving that it did not commit, or is not to be treated as committing, the act of discrimination. If it fails, it is taken to have "committed an act of discrimination". As we have pointed out, since the House of Lords decided Nagarajan , discrimination is unlawful if gender has a significant influence on the decision.[37]Although considering race discrimination, the authorities cited by Lord Nicholls were based on sex discrimination. Given that there should be no difference in treatment of the same statutory language, it follows that for the purposes of sex discrimination, less favourable treatment is unlawful only if gender has a significant influence on the decision. So if it is a very small factor amongst a large number of predominant factors, it will not be a reason for the treatment. The principle of equal treatment in the Equal Treatment Directive applied in the Burden of Proof Directive does not require the eradication altogether of gender in a decision making process, merely its downgrading. In such a case, there will be "no discrimination whatsoever" because gender had no significant influence on the decision.[38]We do not consider the EAT in Barton was saying that that account of the law was changed to require the Respondent to show gender had no effect whatsoever in the decision. Nagarajan was cited in the skeleton arguments and is anyway the leading authority well known to the EAT. It was not distinguished. In order to make this clear, for we accept there may be misunderstanding, we respectfully suggest that guideline (10) in Barton should be adjusted to read as follows:
"To discharge that burden it is necessary for the Respondent to prove, on the balance of probabilities, that the treatment was not significantly influenced, as defined in Nagarajan -v- London Regional Transport [1999] IRLR 572 , by grounds of sex"
[39]Applying that adjustment to guideline (10) in Barton , we have decided that the result achieved by the Employment Tribunal would not differ. We do not consider that the Tribunal in the case under appeal misconstrued the guideline or section 63A. It reached a decision which is unarguably correct in our judgment. There were only two competing explanations for the Applicant's dismissal. The rumours about her relationship were based on her sex, the Tribunal found as a fact, and she was dismissed. Either they were the reason for Mr Emezie's decision or they were not. The Tribunal found that they were. There was no room for an analysis based on the precise role they played, between significant and insignificant, for the Tribunal decided that they were the reason for Mr Emezie's action.[40]We are also asked to consider guideline (12) which requires "cogent evidence" to be adduced by a respondent shouldering the transferred burden, once a prima facie case has been made out by the applicant. The EAT in Barton justified this expression on the basis that the material facts necessary to prove this would be in the hands of the respondent. "Cogent" means forceful or persuasive. Guideline (12) is the correct statement of the law, if we may respectfully say so, and so is the justification. Facts and arguments which are forceful and persuasive will discharge a burden of proof. The cogency of the evidence required depends on the standard of proof the law requires, and the nature of the allegation made. Lord Nicholls in In Re H and Others (Minors) (Sexual Abuse: Standard of Proof) 1996 AC 563 , 586 (a case not cited to us but upon which our judgment does not depend) approved as neatly expressed the proposition that "the more serious the allegation, the more cogent the evidence required … to prove it." In discrimination, the (civil) standard is the balance of probability. Within that standard, the more unlikely the allegation, the more cogent must be the evidence to discharge the civil burden of proof. Once the burden has shifted, if the facts and explanation are not persuasive, the respondent will not discharge it. The Respondent must prove its case on the balance of probability. To do so, it will produce evidence which persuades the industrial jury to find for it. It is entirely appropriate, supported by high authority, to describe that evidence as "cogent".[41]For the above reasons we hold that the Employment Tribunal applied the correct legal tests to what was a relatively simple dispute of fact. We would like to thank Counsel for their considerable help in their oral and written arguments. The appeal is dismissed

Cited in 1 later judgment