Veitch Penny LLP - Exeter | Crediton, Devon

Case

University of Huddersfield v Wolff
Employment Appeal Tribunal (13 July 2003)

Issues

(1) Sex discrimination
(2) Direct discrimination
(3) Correctness of decision

Facts

Dr Wolff was employed as a senior lecturer in the School of Health and Human Sciences. In 2000, she made an application for promotion to the post of principal lecturer. In line with the promotion procedure implemented by the University, her name was put forward to the Dean’s Nomination Committee (DNC) by her school. Whilst Dr Wolff was the school’s preferred candidate, they also put forward a male candidate, Dr Roberts.

The DNC procedure involved the deans of all the candidates’ schools discussing each candidate, leading to numerical marking. The cut off mark for promotion was 33. Dr Roberts was given 34 marks, and was one of those promoted. Dr Wolff however received 31 marks and was not promoted.

Dr Wolff made a claim of unlawful sex discrimination alleging that by not being promoted she had been discrimination against by reason of her sex.

At first instance, the employment tribunal upheld her complaint, finding that Dr Wolff had been less favourably treated, and that the treatment was due to a difference in sex. As there had been changes to the burden of proof (made by s.63A of the Sex Discrimination Act), the tribunal directed itself that once it had determined that there was an act of discrimination due to the applicant’s sex, it was required to look at the university’s explanation. The tribunal went on to note that it was required to uphold her complaint unless it was satisfied that the explanation proved that the university did not commit the act complained of.

The tribunal concluded that there was less favourable treatment and a difference in sex, so the burden shifted to the employers to provide an explanation. They then found that the explanation was unsatisfactory.

The university appealed the decision.

Decision

The Employment Appeal Tribunal (EAT) allowed the appeal, and remitted the case to the employment tribunal for re-hearing.

The EAT found that the original tribunal had been incorrect to find that the burden of proof in this case had shifted to the university and that the university had failed to discharge that burden of showing that they had not discrimination against her on grounds of sex.

It confirmed that the burden of proof moves where the applicant had proved facts from which inferences could be reached that there had been less favourable treatment on the grounds of sex. There must also be a finding of causation between the less favourable treatment and the applicant’s sex. Once this has been established, then the tribunal must consider the respondent’s explanation. The tribunal must, if it has not done so already, make findings of fact or draw inferences from those findings, in order to conclude whether any of the explanations put forward satisfy the tribunal that the less favourable treatment was not on the grounds of sex.

In this case, although the tribunal found that the applicant has been less favourably treated and that there was a difference of sex, at no point did the tribunal find that the less favourable treatment was on the grounds of sex. If the fact that a woman was the unsuccessful candidate for a job which went to a man was sufficient to place the burden on the employer to provide an explanation, that would, in effect, treat an employer as guilty until proven innocent.

Comments

Whilst this case addresses the changes brought about by s.63A, we still await guidance on the nature of the evidence that will suffice for an applicant to create a case of discrimination in the first place.