Veitch Penny LLP - Exeter | Crediton, Devon

Case

EB v BA
Court of Appeal - 22nd February 2006

Issues

(1) Sex Discrimination
(2) Direct Discrimination
(3) Burden of Proof

Facts

The Respondent Company BA provided management consultancy services. EB had been employed as a principal in the financial services group.

On 28 April 2000 EB started living full time in a female role, beginning the transition process of male to female gender reassignment. In November 2000, she underwent gender reassignment surgery and returned to work at the end of that month. On 31st August 2001, EB was dismissed by reason for redundancy. The employer claimed that they had suffered a general downturn in business and had selected EB because her monthly billings had been insufficient.

EB consequently made claims that she had been discriminated against contrary to Section 2A of the Sex Discrimination Act 1975 (as amended) in the allocation of work to her and as a consequence of this she was dismissed on grounds of redundancy. She claimed that projects were not allocated to her, and as a result, her billings fell, leading to her selection for redundancy. Work was allocated via weekly telephone conversations between partners and principals but no written record of decisions regarding allocation were kept.

During the tribunal hearing, BA waited for EB to identify the specific projects to which she had not been allocated. (There were 400 relevant projects.) BA would then provide an explanation why that specific project had not been allocated to EB. To prepare for the hearing, EB had previously sought an order for disclosure of all documents relating to all projects allocated in the relevant period, but the tribunal had refused this on the basis that it was for the employer to prove its argument.

The tribunal dismissed her sex discrimination claim, finding on the evidence that there had been no discrimination, as EB had not shown why she should have been allocated particular projects. EB's appeal to the Employment Appeal Tribunal was also dismissed.

Decision

The matter was referred to the Court of Appeal and EB’s appeals upheld. The matter remitted to a fresh tribunal for rehearing.

In its judgment, the Court of Appeal criticised the approach taken by BA during preparation for the tribunal. BA had argued that it was for EB to identify particular projects she should have been assigned to, and in response BA had supplied an explanation why the project had not been allocated to her. The Court instead found that once the prima facie case of discrimination had been made and the burden of proof shifted to the employer, it was for the employer to produce a detailed analysis of the projects which had not been assigned to EB. The employer did not have sufficient evidence to do this, and therefore could not rebut the case of sex discrimination made against them. The Court found that the employer should have disclosed all the relevant documentation (or at least a substantial number) so that EB could have concentrated on specific projects in support of her case.

The Court of Appeal went on to emphasise the importance of this approach:

"If an employer takes the stance adopted by the respondents, namely 'you prove it', then claimants, particularly those with limited or no means, who challenge large corporations in cases of this kind would be at a great disadvantage. Such an approach may well render the reverse burden of proof provision of little or no use to a claimant...It is important that tribunals bear in mind the objectives of s.63A at pre-hearing and hearing stage. Employers should not be permitted to escape the provisions of s.63A by leaving it to the employee to prove her case."

Comments

This case highlights the effect of the shift in burden of proof in respect of discrimination claims. It was not for EB to prove which projects should have been allocated to her, but for the employer to demonstrate why she had only been allocated three. Once a claimant has shown less favourable treatment, it is for the employer to show that it was not discriminatory. This does underline the need for employers to detail a clear paper trail when making decisions regarding employees, but in many instances this could be a huge evidential burden on employers in practice.

Rachel Billen - Associate Solicitor, Commercial Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

This Employment Law Update does not constitute legal or other professional advice and should not be relied on as such. You should take specific advice regarding your circumstances before taking any action based on the information contained within this Update.