Legal Updates

Employment Law – Court of Appeal Landmark Decision - Test for Proving Sex Discrimination – Burden of Proof

This is a land mark decision regarding the test that has to be applied in a sex discrimination case.

The case of Madarassy v Nomura International Plc [2007], involved the interpretation of the Sex Discrimination Act 1975 (“the Act”). Section 63A of the Act provides as follows:

'(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 or harassment against the complainant which is unlawful by virtue of Part 2 or section 35A or 35B, or (b) is by virtue of section 41 or 42 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, or, as the case may be, is not to be treated as having committed, that act'.

The employee presented an originating application to an employment tribunal complaining of sex discrimination (a total of 33 separate allegations), victimisation and unfair dismissal. All of her claims were dismissed, except for one allegation of sex discrimination involving health and safety.

The tribunal outlined the following self-direction on the burden of proof:

'…We have then considered whether [the employee] was treated any less favourably than a hypothetical male comparator would have been treated in the same circumstances and, if so, whether it was on the grounds of her sex or pregnancy. If so, the Tribunal has to consider whether the Respondent has proved that it did not commit the act in question pursuant to Section 63A(2) of the Sex Discrimination Act 1975.'

The employee subsequently appealed to the Employment Appeal Tribunal (“the EAT”). The appeal on two of the sex discrimination claims were allowed and were therefore remitted to the same employment tribunal for reconsideration. The EAT also allowed the employer's cross-appeal on the health and safety claim.

The employee appealed again to the Court of Appeal.

  • She submitted that the employment tribunal had misdirected itself in law on the burden of proof, in that it had failed to place on the employer the burden of proving that it had not committed the alleged acts of unlawful discrimination against the employee.
  • She further submitted that the employment tribunal had done the contrary: it had placed the burden on her of proving all the elements of her discrimination claims.
  • She argued that the correct approach was namely a difference in status (eg sex) and a difference in treatment (as she had established two fundamental facts) and as a result s.63A(2) of the Act required the tribunal to draw an inference of unlawful discrimination by the employer.
  • She therefore contended that the tribunal's direction on the burden of proof was completely inconsistent with the purpose of Council Directive (EC) 97/80, which dealt with the burden of proof in cases of discrimination based on sex. The Act had been amended by the insertion of s.63A specifically to implement the directive, which had effect from the 12th of October 2001.

The appeal was dismissed by the Court of Appeal  for the following reasons:

  • Firstly, it was not sufficient for a complainant simply to prove facts from which a tribunal could conclude that the respondent 'could have' committed an unlawful act of discrimination. The simple facts of a difference in status and a difference in treatment only indicated a possibility of discrimination.
  • Without more sufficient evidence, they were not facts from which a tribunal 'could conclude' that on the balance of probabilities the respondent had committed an unlawful act of discrimination on the grounds of sex.

It was held that 'could conclude' in s.63A(2) had to be interpreted as 'a reasonable tribunal could properly conclude' from all the evidence before it. That would therefore include:

  • evidence adduced by the complainant in support of the allegations of sex discrimination,
  • such as evidence of a difference in status,
  • a difference in treatment and the reason for the differential treatment
  • evidence adduced by the respondent contesting the complaint. Subject only to the statutory 'absence of an adequate explanation' at that stage,
  • the tribunal would need to consider all the evidence relevant to the discrimination complaint. This would include:
  • evidence as to whether the act complained of had 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 s.5(3) of the Act; and
  • any available evidence of the reasons for the differential treatment.
  • However, it was held that the absence of an adequate explanation for differential treatment of the complainant was not relevant to whether there was evidence of a case of discrimination by the respondent.
  • The absence of an adequate explanation only became relevant if a case was proved by the complainant.
  • The consideration of the tribunal would then move to the second stage. The burden was on the respondent to prove that he had not committed an act of unlawful discrimination, which could be proven by an adequate non-discriminatory explanation of the treatment of the complainant. If this could not be done, then the tribunal had to uphold the discrimination claim.
  • Secondly, although s.63A(2) required a two-stage analysis of the evidence, in practice the tribunal did not hear the evidence and the argument in two stages. The tribunal would have heard all the evidence in the case before it embarked on the two-stage analysis in order to decide:
  • whether the burden of proof had moved to the respondent; and, if so:
  • whether the respondent had discharged the burden of proof.
  • It was held that s.63A(2) did not expressly or impliedly prevent the tribunal at the first stage from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing (and rebutting) the complainant's evidence of discrimination. The respondent might adduce:
  • evidence at the first stage to show that the acts which were alleged to be discriminatory had never happened; or that, if they had:

    ▫       they were not less favourable treatment of the complainant; or

    ▫       that the comparators chosen by the complainant (or the situations with which comparisons were made) were not truly like the situation of the complainant; or

    ▫       that, even if there had been less favourable treatment of the complainant, it was not on the ground of her sex or pregnancy.
  • If such evidence from the respondent was accepted by the tribunal, it could be deemed relevant in showing that, contrary to the complainant's allegations of discrimination, there was nothing in the evidence from which the tribunal could properly infer a case of discrimination on the proscribed ground. The tribunal was instructed by the section to assume the absence of an adequate explanation. The absence of an adequate explanation only became relevant to the burden of proof at the second stage when the respondent had to prove that he had not committed an unlawful act of discrimination.It was held that there was no 'statutory presumption that there was no adequate explanation' for the respondent's treatment of the complainant, and that therefore:

    o            there was discrimination on a proscribed ground; and

    o            that presumption alone caused the burden of proof to move to the respondent.

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    © RT COOPERS, 2007. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.




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