UKSC 37
On appeal from:  CSIH 4
Hewage (Respondent) v Grampian Health Board (Appellant) (Scotland)
Lord Hope, Deputy President
JUDGMENT GIVEN ON
25 July 2012
Heard on 26 June 2012
Ian Truscott QC
(Instructed by NHS National Services Scotland Central Legal Office)
Brian Napier QC
(Instructed by Lefevre Litigation)
LORD HOPE (WITH WHOM LADY HALE, LORD MANCE, LORD KERR AND LORD REED AGREE)
"The claimant submits that other white male consultants were not subjected to the same bullying and harassing treatment that she suffered and that she would not have been treated in the way in which she was were it not for her sex and race. Accordingly, she submits that she was subjected to less favourable treatment on the grounds of her sex and race contrary to the Sex Discrimination Act 1975 and the Race Relations Act 1976." [Emphasis added.]
In its reply form ET/3 the Board denied that Mrs Hewage had been constructively dismissed. It did not respond to the allegation of discrimination, nor did it call for further particulars as it could have done under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (SI 2004/1861), Schedule 1. During the hearing before the employment tribunal Mrs Hewage's evidence of discrimination was led without objection. Moreover, as the Lord Justice Clerk observed in para 30 of his opinion, the Board chose not to call Mr McLay, Mr Chisholm or Miss Catto to give evidence on its behalf.
"The statutory amendments clearly require the employment tribunal to go through a two-stage process if the complaint of the complainant is to be upheld. The first stage requires the complainant to prove facts from which the tribunal could, apart from the section, conclude in the absence of an adequate explanation that the respondent has committed, or is to be treated as having committed, the unlawful act of discrimination against the complainant. The second stage, which only comes into effect if the complainant has proved those facts, requires the respondent to prove that he did not commit or is not to be treated as having committed the unlawful act, if the complaint is not to be upheld."
The issues in this appeal
(a) was there an error of law?
"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 2 ... or
(b) is by virtue of section 41 or 42 to be treated as having committed such an act of discrimination ...
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.
Section 54A(2) is, mutatis mutandis, in the same terms.
"Most cases turn on the accumulation of multiple findings of primary fact, from which the court or tribunal is invited to draw an inference of a discriminatory explanation of those facts. It is vital that, as far as possible, the law on the burden of proof applied by the fact-finding body is clear and certain. The guidance in Igen Ltd v Wong meets these criteria. It does not need to be amended to make it work better."
"The employment tribunal will have heard all the evidence in the case before it embarks on the two-stage analysis in order to decide, first, whether the burden of proof has moved to the respondent and, if so, secondly, whether the respondent has discharged the burden of proof."
"In my judgment, it is unhelpful to introduce words like 'presume' into the first stage of establishing a prima facie case. Section 63A(2) makes no mention of any presumption. In the relevant passage in Igen Ltd v Wong … the court explained why the court does not, at the first stage, consider the absence of an adequate explanation. The tribunal is told by the section to assume the absence of an adequate explanation. The absence of an adequate explanation only becomes relevant to the burden of proof at the second stage when the respondent has to prove that he did not commit an unlawful act of discrimination."
The assumption at that stage, in other words, is simply that there is no adequate explanation. There is no assumption as to whether or not a prima facie case has been established. The wording of sections 63A(2) and 54A(2) is quite explicit on this point. The complainant must prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the complainant which is unlawful. So the prima facie case must be proved, and it is for the claimant to discharge that burden.
(c) the remit