The Solicitors Regulation Authority v Mitchell (Sex Discrimination : Direct) [2014] UKEAT 0497_12_1702
EAT
The Solicitors Regulation Authority v Mitchell (Sex Discrimination : Direct)
[2014] UKEAT 0497_12_1702 · 2014-02-17
[58]“ The absence of an adequate explanation for differential treatment of the complainant is not, however, 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. The burden is on the respondent to prove that he has not committed an act of unlawful discrimination. He may prove this by an adequate non-discriminatory explanation of the treatment of the complainant. If he does not, the tribunal must uphold the discrimination claim. ” 45. This, it was submitted, was authority for the proposition that the absence of an adequate explanation is only relevant at the second-stage of the process, but it is not relevant for establishing the prima facie case. This passage appears in a part of the Judgment in which Mummery LJ is setting out submissions made on behalf of the claimant by Mr Robin Allen and does not represent his view of the law. For the sake of completeness, we also draw attention to what Mummery LJ had to say at paragraph 64: “ Igen v. Wong (paragraph 22) held that this expression indicates that, in considering what inferences or conclusions could be drawn from the primary facts (stage 1), the employment tribunal is required to make an assumption, ‘22. …which may be contrary to reality, the plain purpose being to shift the burden of proof at the second stage, so that unless the respondent provides an adequate explanation, the complainant will succeed. It would be inconsistent with that assumption to take account of an adequate explanation by the respondent at the first stage.’” 46. We have derived significant assistance from the Judgment at first instance of Elias J in this Tribunal in The Law Society v Bahl [2003] IRLR 640 . We derive the following from that Judgment:(i) In appropriate circumstances the “something more” can be an explanation proffered by the Respondent for the less favourable treatment that is rejected by the Employment Tribunal(ii) If the Respondent puts forward a false reason for the treatment, but the Employment Tribunal is able on the facts to find another, non-discriminatory reason, it cannot make a finding of discrimination. 47. At paragraph 96 Elias J, referring to the Judgment of Sedley LJ in Anya v University of Oxford [2001] IRLR 377 observed:[96]“ It is relevant to note that no reference was made here to the ratio of the decision enunciated in Zafar (although the case was referred to for a different purpose; see paragraph 10). Mr de Mello says that these comments demonstrate that it is open to a tribunal to infer discrimination from unreasonable treatment, at least if the employer does not show that equally unreasonable treatment would have been meted out to a white person or man, as the case may be. We recognise that read broadly the passage could indeed justify such an interpretation, not least because the tribunal's comments in Anya which Sedley LJ referred to as ‘arguably’ incorrect seem to us, with respect, faithfully to reflect the principle established by the House of Lords in the Zafar case. However, we do not think that they could have been intended to be read in that manner. We do, however, respectfully accept that Sedley LJ was right to say that racial bias may be inferred if there is no explanation for the unreasonable behaviour. But it is not then the mere fact of unreasonable behaviour which entitles the tribunal to infer discrimination; it is not, to use the tribunal's language, unreasonable conduct ‘without more’ but rather the fact that there is no reason advanced for it. Nor in our view can Sedley LJ be taken to be saying that the employer can only establish a proper explanation if he shows that in fact he behaves equally badly to members of all minority groups. The fact that he does so will be one way of rebutting an inference of unlawful discrimination, even if there are pointers which would otherwise justify that inference. For example, an employer may have unreasonable disciplinary procedures which are regularly applied to all staff. Plainly there is no unlawful discrimination simply because the employee subjected to them happens to be black or female. The employer has not adequately explained, in the sense of justified, his conduct, because he has applied an unreasonable disciplinary procedure; however, he has shown that whatever the reason, it is not discriminatory. No doubt the mere assertion by an employer that he would treat others in the same manifestly unreasonable way, but with no evidence that he has in fact done so, would not carry any weight with a tribunal which is minded to draw the inference on proper and sufficient grounds that the cause of the treatment has been an act of unlawful discrimination.”48. At paragraph 101 of Elias J’s Judgment he said that the fact the Respondent gave a false reason for the less favourable treatment does not require the Employment Tribunal to make a finding of discrimination, depending of course on the relevant factual circumstances: “The significance of the fact that the treatment is unreasonable is that a tribunal will more readily in practice reject the explanation given than it would if the treatment were reasonable. In short, it goes to credibility. If the tribunal does not accept the reason given by the alleged discriminator, it may be open to it to infer discrimination But it will depend upon why it has rejected the reason that he has given, and whether the primary facts it finds provide another and cogent explanation for the conduct. Persons who have not in fact discriminated on the proscribed grounds may nonetheless sometimes give a false reason for the behaviour. They may rightly consider, for example, that the true reason casts them in a less favourable light, perhaps because it discloses incompetence or insensitivity. If the findings of the tribunal suggest that there is such an explanation, then the fact that the alleged discriminator has been less than frank in the witness box when giving evidence will provide little, if any, evidence to support a finding of unlawful discrimination itself.”49. As Elias J later made clear at paragraph 220:[220]“ An inadequate or unjustified explanation does not of itself amount to a discriminatory one. ” 50. He continued at paragraph 113:[113]“ Third, there is an obligation on the tribunal to ensure that it has taken into consideration all potentially relevant non-discriminatory factors which might realistically explain the conduct of the alleged discriminator. As Lord Nicholls put it, if prima facie there is a factor which distinguishes the two situations, then that may well be the non-discriminatory reason for the treatment, unless the evidence indicates otherwise. If the tribunal do not recognise the potential significance of such a factor, then their decision will be flawed because they will have failed to take into account a potentially material characteristic or characteristics which could conclusively explain, on non-discriminatory grounds, the difference in treatment between the applicant and the hypothetical comparator. A tribunal cannot properly reject such potentially relevant explanations without considering them and having a proper evidential basis for rejecting them. ” 51. At paragraphs 126 and 127 Elias J stressed the crucial need for the Employment Tribunal to consider all explanations that in the light of its findings might explain the decision of the Respondent. He continued at paragraph 126:[126]“ We would summarise our analysis of the effect of these authorities as follows. In our opinion the decision in Shamoon indicates that tribunals need not be unduly concerned to identify which is the hypothetical comparator in order to address the issue of less favourable treatment, as though this were a necessary stage in the reasoning process. That may lead to unnecessary and needless disputes. The tribunal must of course ensure that there is a proper comparison of like with like: that is essential to the finding of less favourable treatment. Moreover, the relevant statutory provisions require a comparison such that the relevant circumstances of the comparator are the same or not materially different from those of the applicant. However, the significance of identifying the comparator is that it identifies potential differences between the applicant and comparator which could explain the difference in treatment. Strictly, whether those factors are considered in the context of constructing an appropriate hypothetical comparator or whether they are considered in the context of the stage of determining the reason for the conduct will not matter in practice, although the decision in Shamoon makes it plain that all relevant factors should be considered at both stages, and indeed that ultimately there is only one question. What is crucial is that the tribunal considers all the explanations which, in the light of its findings, may realistically explain the decision. These explanations may be the reasons for the treatment relied upon by the alleged discriminator which the tribunal accepts as genuine, or they may naturally suggest themselves in the light of the tribunal's primary findings of fact. Provided these potential explanations are considered, the tribunal will in fact have taken account of all the characteristics that could be material to the make up the hypothetical comparator, however the comparator is defined.” 52. We have found further helpful guidance from two Judgments of Langstaff J on the importance to be attached to the rejection of an explanation by the Respondent by the Employment Tribunal and the need to show some flexibility in following the guidance in Madarassy . 53. Langstaff J in Maksymiuk v Bar Roma Partnership UKEATS/0017/12/BI at paragraph 28 said:[28]“ The guidance in Igen v Wong has been carefully refined. It is an important template for decision making. As Laing and Madarassy have pointed out however, a Tribunal is not required to force the facts into a constrained cordon where in the circumstances of the particular case they do not fit it. That would not be to apply the words of the statute appropriately. Intelligent application of the guidance, rather than slavish obedience where it would require contorted logic, is what is required.” 54. In Birmingham City Council v Millwood [2012] UKEAT 0564 Langstaff J considered the effect of the rejection of the respondent’s explanations for the less favourable treatment meted out to the claimant: “26. What is more problematic is the situation where there is an explanation that is not necessarily found expressly to be a lie but which is rejected as opposed to being one that is simply not regarded as sufficiently adequate. Realistically, it seems to us that, in any case in which an employer justifies treatment that has a differential effect as between a person of one race and a person or persons of another by putting forward a number of inconsistent explanations which are disbelieved (as opposed to not being fully accepted), there is sufficient to justify a shift of the burden of proof. Exactly that evidential position would have arisen in the days in which King v Great Britain‑China Centre [1992] ICR 516 was the leading authority in relation to the approach a Tribunal should take to claims of discrimination. Although a Tribunal must by statute ignore whether there is any adequate explanation in stage one of its logical analysis of the facts, that does not mean, in our view, to say that it can and should ignore an explanation that is frankly inadequate and in particular one that is disbelieved. 27…. To prefer one conclusion rather than another is not, as it seems to us, the same as rejecting a reason put as being simply wrong. In essence, the Tribunal in the present case appeared not to believe at least two of the explanations that were being advanced to it, and there were, we accept from what Mr Swanson has said, some three inconsistent explanations put forward for the difference in treatment that constituted the alleged discriminatory conduct.” 55. We remind ourselves of the approach that we should be taking to consideration of the Judgment of the Employment Tribunal. We firstly referred to the well known dictum of Elias J in ASLEF v Brady [2006] IRLR 576 at paragraph 55. “Mr Sethi properly reminded us of certain well established general principles derived from the authorities. The EAT must respect the factual findings of the employment Tribunal and should not strain to identify an error merely because it is unhappy with any factual conclusions; it should not ‘use a fine toothcomb’ to subject the reasons of the Employment Tribunal to unrealistically detailed scrutiny so as to find artificial defects; it is not necessary for the Tribunal to make findings on all matters of dispute before them nor to recount all the evidence, so that it cannot be assumed that the EAT sees all the evidence; and infelicities or even legal inaccuracies in particular sentences in the decision will not render the decision itself defective if the Tribunal has essentially properly directed itself on the relevant law.” 56. Finally we remind ourselves of the Judgment of Lord Hope in Hewage v Grampian Health Board [2012] ICR 1054 : “26. It is well established, and has been said many times, that one ought not to take too technical a view of the way an employment tribunal expresses itself, that a generous interpretation ought to be given to its reasoning and that it ought not to be subjected to an unduly critical analysis.” 57. With those considerations in mind we turn to our conclusions. Conclusions Alleged error on interpretation of the home-working agreement (HWA) 58. In our opinion there was no error at all on the part of the Employment Tribunal. The issue before the Tribunal in relation to that agreement was essentially an issue as to fact both in relation to the terms of the agreement, both oral and in writing, and also as to its interpretation. There was sufficient evidence before the Employment Tribunal to justify its finding and we are unable to interfere, because no point of law is raised in this regard, and in any event it seems irrelevant to us in considering the question of discrimination on the grounds of sex as set out in the issues before the Employment Tribunal. In our opinion it is irrelevant whether the withdrawal of a concession was of a contractual or non-contractual concession. The issue is not whether the Respondent could revoke the concession but why it did so. Ms Chambis gave her explanation to the Employment Tribunal, which was rejected. 59. We do not intend to deal with all the challenges to the findings of fact, of which there are a number; for example in relation to the meeting of 10 September 2011. It is not the function of the Employment Appeal Tribunal to re-hear the factual merits of a case and the Respondent’s case comes nowhere near approaching the “overwhelming case” required for a perversity appeal; see Mummery LJ in Yeboah v Crofton [2002] IRLR 634 at paragraph 93. The allegation that Amreak Singh was not a valid comparator60. A comparator does not have to be a clone of the Claimant.61. The Employment Tribunal, in our opinion, correctly directed itself and made the relevant findings of fact; see paragraphs 12, 13, 15 and 16 of the decision of the Employment Tribunal. The Employment Tribunal was entitled on the material before it to conclude that although Mr Singh’s situation was not identical to that of the Claimant, it was not materially different and the relevant circumstances were the same. The argument as to whether Mr Singh was a valid comparator again appears to us to be an attempt to re-argue the factual merits of the case and does not raise a point of law. Alleged error of law as to the approach to the question of less favourable treatment than that enjoyed by comparators62. It was suggested that the Employment Tribunal should first have asked if there was less favourable treatment and only then decided if the less favourable treatment meted out to the Claimant was unlawful. It was also said that the Employment Tribunal had approached the issue of a hypothetical rather than actual comparator but placed insufficient emphasis on whether the Claimant had been treated less favourably than Mr Singh. We are unable to accept these submissions. The Employment Tribunal clearly compared treatment meted out to the Claimant with that of an actual comparator, Mr Singh, so in the event the less favourable treatment was not an issue. The issue was whether the less favourable treatment was discriminatory. That issue was decided, in any event, after the Employment Tribunal had considered the less favourable treatment. Error of law in relation to shifting burden of proof63. It was asserted by the Respondent that the Employment Tribunal fell into error in running both stages of the two-stage approach together and failed to make findings in relation to the “something more” that was required beyond mere difference in gender to bring the reverse burden of proof into play. It was submitted that Ms Chambis’ lack of veracity was not capable of being “something more”.64. We do not consider that there is anything in these points either even if the Employment Tribunal should not have run two limbs of the shifting burden of proof together. It asked the reason why the Claimant had been treated as she was. It was not simply a question of the Respondent putting forward no explanation but having given a false explanation. That was clearly capable of being “something more”; see the citations earlier in this Judgment from Bahl , Anya , and Birmingham . The Employment Tribunal set out the reasons why it did not believe Ms Chambis’ evidence at paragraphs 19 and 20 and stressed her lack of credibility at paragraph 21. This approach is entirely consistent with the approach taken in Shamoon , Laing , and the Birmingham case. We reject the suggestion that there was simply “no explanation” once Ms Chambis’ evidence was rejected; the “something more” was the giving of a false explanation. It was no longer necessary in those circumstances to seek an alternative explanation from the Respondent, whose explanation had been rejected. The Employment Tribunal was, therefore, in those circumstances, entitled to treat the combination of the less favourable treatment, the difference in gender between the Claimant and Mr Singh, and the false explanation given as being evidence from which it could infer, in the absence of the satisfactory explanation, a discriminatory reason for the less favourable treatment. It also rejected the suggestion that the rejection of Ms Chambis’ evidence went solely to her credibility. It went to the issue of whether the false explanation, when combined with the difference in gender rendered the less favourable treatment discriminatory.65. In relation to the suggestion that Mummery LJ in Madarassy at paragraph 58 was setting out his view of the law; we have already remarked that he was in fact referring to a submission by Mr Robin Allen. As we have said, we have also not been able to find that this paragraph was approved in the Hewage case.66. We regard the judgment of Mummery LJ in Madarassy as being a correct statement of the law and authoritative. It is certainly binding upon us and it would be wholly inappropriate for us to treat it with caution. We accept that the guidelines in the Barton , Igen , and Madarassy cases are not to be treated as being words of a statute; however, in the instant case it was wholly appropriate for the Employment Tribunal to adopt the approach recommended in Madarassy and the earlier cases.67. In relation to the submission that if the employer’s evidence of a non-discriminatory reason as admitted at stage 1 the whole stage process would collapse is concerned, the approach taken by the Employment Tribunal was not only approved by the House of Lords in Shamoon , but was also approved in Anya and in the Employment Appeal Tribunal in Bahl and Langstaff J in the Birmingham case.68. We recognise that the effect of the reverse burden of proof in this case may have produced ‘an assumption contrary to reality’. We note also that there appears to have been a difference of ethnicity between the Claimant and Mr Singh although it was not suggested that there had been any discrimination on the grounds of race. However it would seem that the facts relied upon to support the claim for discrimination on the grounds of sex would also have supported a claim for discrimination on the grounds of race.69. N evertheless we feel constrained by the authorities to decide that the Employment Tribunal was entitled to find that the combination of difference in gender and less favourable treatment than Mr Singh, coupled with the finding that the Respondent’s explanation was false, brought into play the reverse burden of proof. In those circumstances, the Employment Tribunal then, in the absence of any other explanation for the less favourable treatment, was bound to conclude that the Respondent had discriminated against the Claimant.70. In the circumstances all the grounds of appeal and the appeal must be dismissed71. We express our gratitude to counsel for the assistance they have given to us in their written and oral submissions.