England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEALS FROM EMPLOYMENT APPEAL TRIBUNALS

		Royal Courts of Justice Strand, London, WC2A 2LL
		18 February 2005

Lord Justice Peter Gibson (giving the judgment of the court):
 


Introduction

1. These are three appeals from the Employment Appeal Tribunal ("the EAT"). The circumstances of each differ widely from those of the others, but they all raise questions on the interpretation and application of the statutory provisions comparatively recently introduced into the Sex Discrimination Act 1975 ("the SDA") and the Race Relations Act 1976 ("the RRA") respectively as to the shifting of the burden of proof in direct discrimination cases under those Acts.

2. A similar statutory provision has recently been introduced into the Disability Discrimination Act 1995 ("the DDA"). Similar provisions are also to be found in Reg. 29 of the Employment Equality (Sexual Orientation) Regulations 2003 and in Reg. 29 of the Employment Equality (Religion or Belief) Regulations 2003.

3. Because of the possible impact which our decisions in these appeals may have on practice in discrimination cases, the Equal Opportunities Commission, the Commission for Racial Equality and the Disability Rights Commission successfully applied to this court for permission to intervene. We are grateful to Mr. Robin Allen Q.C. and Ms. Anna Beale, appearing for those Commissions, for their assistance.

4. From the statistics provided to us by Mr. Allen it is apparent that a significant proportion of the Originating Applications presented to an Employment Tribunal ("ET") each year raise discrimination complaints. In just under 20,000 cases (17% of all cases) commenced in 2003-4 the main complaint was of discrimination, and although there are no figures available of how many of those cases concerned allegations of direct, rather than indirect, discrimination, it is likely that the majority would have been cases of alleged direct discrimination.

   The law

5. The new provisions in the Discrimination Acts are the following:

   (A) SDA

   S. 63A (inserted by the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001) provides:

   "(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 against the complainant which is unlawful by virtue of Part II, or

   (b) is by virtue of section 41 or 42 to be treated as having committed such an act of discrimination 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."

   (B) RRA

   S.54A (inserted by the Race Relations Act 1976 (Amendment) Regulations 2003) provides:

   "(1) This section applies where a complaint is presented under section 54 and the complaint is that the respondent:

   (a) has committed an act of discrimination, on grounds of race or ethnic or national origins, which is unlawful by virtue of any provision referred to in Section 1 (1B)(a) (e) or (f) or Part IV in its application to those provisions, or

   (b) has committed an act of harassment.

   (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 such an act of discrimination or harassment against the complainant, or

   (b) is by virtue of section 32 or 33 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 the act or, as the case may be, is not to be treated as having committed that act."

   (c) DDA

   S. 17A (1C) (inserted by the Disability Discrimination Act 1995 (Amendment) Regulations 2003) provides:

   "Where, on the hearing of a complaint under subsection (1) the complainant proves facts from which the tribunal could, apart from this subsection, conclude in the absence of an adequate explanation that the respondent has acted in a way which is unlawful under this Part, the tribunal shall uphold the complaint unless the respondent proves that he did not so act."

6. It has long been recognised that proving discrimination claims may pose great difficulties for claimants. Before the new provisions were inserted into the SDA, the RRA and the DDA respectively, ETs generally followed the guidance given by this court in a case under the RRA, King v Great Britain – China Centre [1992] ICR 516. Neill L.J. (with whom Nourse L.J. and Sir John Megaw agreed) said this (at pp 528-9):

   "From these several authorities it is possible, I think, to extract the following principles and guidance. (1) It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail. (2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption that "he or she would not have fitted in." (3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 65(2)(b) of the Act of 1976 from an evasive or equivocal reply to a questionnaire. (4) Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but, as May L.J. put it in North West Thames Regional Health Authority v. Noone [1988] I.C.R. 813, 822, "almost common sense." (5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case."

7. That guidance received the express approval of the House of Lords in Glasgow City Council v Zafar [1998] ICR 120. In that case Lord Browne-Wilkinson acknowledged that remarks which he made when, as Browne-Wilkinson J., he presided in the EAT in two earlier cases, Khanna v Ministry of Defence [1981] ICR 653 and Chattopadhyay v Headmaster of Holloway School [1982] ICR 132, went too far and should not be followed. Thus in Chattopadhyay it was said:

   "the law has been established that if an applicant shows that he has been treated less favourably than others in circumstances which are consistent with that treatment being based on racial grounds, the industrial tribunal should draw an inference that such treatment was on racial grounds, unless the respondent can satisfy the industrial tribunal that there is an innocent explanation."

   However, it might be thought that, with the introduction of the new provisions set out in para. 5 above, those remarks are now consistent with the Discrimination Acts as amended.

8. European law had in the meantime been moving in the direction now enacted in the new provisions. In a series of cases, culminating in Enderby v Frenchay Health Authority [1994] ICR 112 and Specialarbejderforbundet I Danmark v Dansk Industry [1996] ICR 51, the European Court of Justice ("the ECJ") ruled that in the field of sex discrimination the burden of proof might be shifted when that was necessary to avoid depriving workers, who appeared to be the victims of discrimination, of any effective means of enforcing the principle of equal pay.

9. That was then followed by the promulgation of the Burden of Proof Directive (Council Directive 97/80/EC). This recited the requirement under para. 16 of the 1989 Social Charter that action should be intensified to ensure the implementation of the principle of equality for men and women (recital (3)). It further recited that plaintiffs could be deprived of any effective means of enforcing the principle of equal treatment before the national courts if the effect of introducing evidence of an apparent discrimination were not to impose upon the respondent the burden of proving that his practice is not in fact discriminating (recital (17)). The aim of the Directive was said in Art. 1 to be "to ensure that the measures taken by the Member States to implement the principle of equal treatment are made more effective, in order to enable all persons who consider themselves wronged because the principle of equal treatment has not been applied to them to have their rights asserted by judicial process after possible recourse to other competent bodies." By Art. 4 (1):

   "Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment."

   By Art. 4(2) it was provided that the Directive was not to prevent Member States from introducing rules of evidence more favourable to plaintiffs.

10. The United Kingdom did not originally accede to the Social Charter and so was not bound by the Burden of Proof Directive. However, it did so accede in 1997 and by Council Directive 98/52/EC the Burden of Proof Directive was extended to apply to the United Kingdom. S. 63A of the SDA was intended to implement the Burden of Proof Directive.

11. Meanwhile in October 1997 Art. 13 of the Amsterdam Treaty amended the Treaty of Rome by including a power for the Council to legislate against discrimination in relation to a range of grounds. The Council exercised that power twice in 2000.

12. In the Race Directive (Council Directive 2000/43/EC) it was recited (in recital (21)):

    "The rules on the burden of proof must be adapted when there is a prima facie case of discrimination and, for the principle of equal treatment to be applied effectively, the burden of proof must shift back to the respondent when evidence of such discrimination is brought."

    By Art. 8(1) and (2) Member States were directed in like manner as in Art. 4(1) and (2) of the Burden of Proof Directive. S. 54A of the RRA was intended to implement Art. 8.

13. In the Framework Employment Equality Directive (Council Directive 2000/78/EC) recital (31) contained the like provision to recital (21) of the Race Directive. By Art. 10(1) and (2) Member States were directed in like manner as in Art. 8(1) and (2) of the Race Directive. S. 17A (1C) of the DDA was intended to implement Art. 10.

    The Barton guidance

14. Following the insertion of s. 63A into the SDA, the EAT (His Honour Judge Ansell presiding) in a sex discrimination case, Barton v Investec Securities Ltd. [2003] ICR 1205 set out in para. 25 the following guidance in the light of the statutory changes:

    "(1) Pursuant to section 63A of the 1975 Act, it is for the applicant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the employer has committed an act of discrimination against the applicant which is unlawful by virtue of Part 2, or which, by virtue of section 41 or 42 of the 1975 Act, is to be treated as having been committed against the applicant. These are referred to below as "such facts".

    (2) If the applicant does not prove such facts he or she will fail.

    (3) It is important to bear in mind in deciding whether the applicant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that "he or she would not have fitted in".

    (4) In deciding whether the applicant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.

    (5) It is important to note the word is "could". At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts proved by the applicant to see what inferences of secondary fact could be drawn from them.

    (6) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 74(2)(b) of the 1975 Act from an evasive or equivocal reply to a questionnaire or any other questions that fall within section 74(2): see Hinks v Riva Systems Ltd (unreported) 22 November 1996.

    (7) Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant, and if so take it into account in determining such facts pursuant to section 56A(10) of the 1975 Act. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.

    (8) Where the applicant has proved facts from which inferences could be drawn that the employer has treated the applicant less favourably on the grounds of sex, then the burden of proof moves to the employer.

    (9) It is then for the employer to prove that he did not commit, or, as the case may be, is not to be treated as having committed, that act.

    (10) To discharge that burden it is necessary for the employer to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since "no discrimination whatsoever" is compatible with the Burden of Proof Directive 97/80.

    (11) That requires a tribunal to assess not merely whether the employer has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not any part of the reasons for the treatment in question.

    (12) Since the facts necessary to prove an explanation would normally be in the possession of the employer, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice."

15. That guidance ("the Barton guidance") has been applied many times by ETs and EATs not only in the field of sex discrimination to which its wording is directed but also in relation to race and disability discrimination. It is not in dispute that the Discrimination Acts should be construed consistently with each other so far as possible. The appeals considered by the House of Lords in Rhys-Harper v Relaxion Group plc [2003] ICR 867 provide a striking example of that notwithstanding differences in the statutory language used.

16. Before us there has been no challenge to the broad outline of the Barton guidance, although suggestions have been put to us as to how it might be improved. Some criticisms have been made and suggestions put forward by the EATs in other cases. We shall return to the wording of the guidance later. However it is important to stress at the outset that ETs must obtain their main guidance from the statutory language itself. No error of law is committed by an ET failing to set out the Barton guidance or by failing to go through it paragraph by paragraph in its decision.

17. The statutory amendments clearly require the ET 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 ET 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.

18. There was some debate before us as to whether the statutory amendments merely codified the pre-existing law or whether it had made a substantive change to the law. Miss Elizabeth Slade Q.C. (appearing in Wong v Igen Ltd. for the employer), in initially arguing for the former, relied on the comment by Simon Brown L.J. in Nelson v Carillion Services Ltd. [2003] ICR 1256 at para. 26:

    "It seems to me tolerably clear that the effect of section 63A [of the SDA] was to codify rather than alter the pre-existing position established by the case law".

    That comment was made obiter in a case relating to alleged indirect discrimination. We think it clear, as Mr. Allen submitted and as Miss Slade accepted, that the amendments did not codify, but altered, the pre-existing position established by the case law relating to direct discrimination. It is plain from the Burden of Proof Directive that Member States were required to take measures to ensure that once the complainant established facts from which it might be presumed that there had been discrimination, the burden of proof shifted to the respondent to prove no breach of the principle of equal treatment. Looking at Neill L.J.'s guidelines in King (set out in para. 6 above), it is plain that paras. (1), (4) and (5) need alteration. It is for the applicant complaining of discrimination only to make out his or her case to satisfy the first stage requirements. If the second stage is reached, and the respondent's explanation is inadequate, it will be not merely legitimate but also necessary for the ET to conclude that the complaint should be upheld. The statutory amendments shift the evidential burden of proof to the respondent if the complainant proves what he or she is required to prove at the first stage.

19. Although we have referred to the two stages in the ET's decision-making process, we do not thereby intend to suggest that ETs should divide hearings into two parts to correspond to those stages. No doubt ETs will generally wish to hear all the evidence, including the respondent's explanation, before deciding whether the requirements at the first stage are satisfied and, if so, whether the respondent has discharged the onus shifted to him.

20. One issue which arose before us was whether the words of the statutory amendment, "in the absence of an adequate explanation", precluded considerations of the respondent's explanation at the first stage. Miss Slade submitted that it did not. She argued that the totality of the evidence must be considered. She said that the ET should at the first stage consider whether the respondent has provided an adequate explanation and, if so, it should take that into account at that stage. She referred us to the remarks of the EAT in University of Huddersfield v Wolff [2004] ICR 828 where Burton J., after setting out the Barton guidance, said:

    "26. The right course, therefore, for the tribunal, had it set out at first to find material facts, but in any event even though it did not quite follow that format, would be to address section 63A and, in particular, to conclude that the burden moves where the applicant has proved facts from which inferences could be drawn that the respondent has treated the applicant less favourably on the grounds of sex. It must therefore arrive at a conclusion that there is a prima facie case that the respondent has treated the applicant less favourably on the grounds of sex. Once it has done that, then it passes to consider the respondent's explanations; it must, if it has not already done so, make findings of fact, or draw inferences from findings of fact, for the purposes of concluding whether any of the explanations put forward by the respondent satisfy it, the burden being on the respondent to show that the less favourable treatment was not on the grounds of sex. "

    Miss Slade said that the last sentence showed that the ET might already have made findings of fact about the explanations of the respondent before the second stage and she argued that therefore Burton J. was supporting the notion that explanations should be taken into account at the first stage.

21. Mr. Antony White Q.C., appearing for the employee in Wong, takes issue with Miss Slade on this point. He submits, and is supported by Mr. Allen in that submission, that in considering what inferences or conclusions can be drawn from the primary facts, the ET must assume that there is no adequate explanation for those facts. Mr. White accepts that that does not prevent the ET from taking into account at the first stage the fact that the respondent has given an inadequate explanation, but he argues that that is in no way inconsistent with the assumption which the words "in the absence of an adequate explanation" require to be made.

22. We agree with Mr. White. The words "in the absence of an adequate explanation", followed by "could", indicate that the ET is required to make an assumption at the first stage 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. We think that Miss Slade seeks to extract more significance from the words used by Burton J. in Wolff than they can reasonably have. It is of course possible that the facts found relevant to the first stage may also relate to the explanation of the respondent.

23. We accept Mr. White's suggestion that in view of our conclusion it may be helpful for the Barton guidance to include a paragraph stating that the ET must assume no adequate explanation at the first stage. That suggestion was supported by Mr. Allen.

24. We draw attention to another related point on the language of the statutory amendments, although there was no dispute before us on it. The language points to the complainant having to prove facts, and there is no mention of evidence from the respondent. However, it would be unreal if the ET could not take account of evidence from the respondent if such evidence assisted the ET to conclude that in the absence of an adequate explanation unlawful discrimination by the respondent on a proscribed ground would have been established. Paras. (6) and (7) of the Barton guidance give examples of unsatisfactory conduct by the respondent, in response, for example, to the statutory questionnaire or in breach of a code of practice, being relevant to the drawing of inferences at the first stage, and it cannot matter whether the claimant or the respondent gave that evidence.

25. An important point of construction is raised by the decision of the EAT in Webster v Brunel University. We shall come to the particular circumstances of that appeal later, but the short point raised is whether the word "could" in the statutory amendments imports that it is not necessary for the complainant to prove that the respondent in fact committed the act of discrimination complained of so long as the complainant proves that there was an act of less favourable treatment on a prohibited ground and that that act could have been committed by the respondent. As Burton J. put it in para. 34 of the judgment of the EAT:

    "It will be for a tribunal to ask itself, having found the facts as to what occurred, whether the treatment, which it, on the balance of probabilities, has established, could have been by the respondent."

26. Mr. Paul Troop, appearing for the complainant employee, submits that the EAT was right in that construction. He says that the wording of the statutory amendments is clear: at the first stage the burden is on the claimant merely to establish facts from which it could be inferred or concluded, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the complainant. He relies on the example given by the EAT of a group of 100 people in a room, 30 of whom are employees of the respondent and one of the 100 present uttered a racially discriminatory word, "Paki", offensive to the Asian complainant, but the complainant is unable to identify which of the 100 people said it. Mr. Troop accepted that in those circumstances the ET might not conclude that the respondent employer had committed the act of discrimination. However, he said that if 70 of the 100 were employees, the ET might conclude that the respondent had committed that act.

27. Mr. Neil Vickery for the employer submits that such a construction is contrary to the statutory language and to that of the Directive. He points out that the effect of this construction is to place the onus on the respondent to disprove certain facts which go to make up the act of discrimination: the respondent not only needs to provide an explanation for his conduct once he has been shown to have acted in a certain way but needs to prove that he did not even do the act in the first place. He describes such a result as startling. He adverts to the fact that the statutory amendments use the words "apart from this section" when describing what the complainant needs to prove. He points out that, apart from the statutory shift of the burden of proof, the EAT's construction runs contrary to existing case law, it being repeatedly said that it is for the complainant to prove his or her case.

28. With all respect to the EAT, we cannot accept its construction. We have no hesitation in agreeing with Mr. Vickery. The language of the statutory amendments seems to us plain. It is for the complainant to prove the facts from which, if the amendments had not been passed, the ET could conclude, in the absence of an adequate explanation, that the respondent committed an unlawful act of discrimination. It does not say that the facts to be proved are those from which the ET could conclude that the respondent "could have committed" such act.

29. The relevant act is, in a race discrimination case such as Webster, that (a) in circumstances relevant for the purposes of any provision of the RRA (for example in relation to employment in the circumstances specified in s. 4 of the RRA), (b) the alleged discriminator treats another person less favourably and (c) does so on racial grounds. All those facts are facts which the complainant, in our judgment, needs to prove on the balance of probabilities. The EAT said (in para. 34) that it was satisfied that the burden of showing that the discriminatory act was done by an employee of the employer should not remain upon the complainant "once a prima facie case has been established". That is a direction that what the EAT in Webster called the ingredient even more necessary than less favourable treatment on the ground of sex (no doubt the EAT meant race), viz. that the act was by the respondent, need not be proved on the balance of probabilities, so long as it was shown that the ET could conclude, in the absence of an adequate explanation, that there was a possibility that it was by the respondent. There is nothing in the language of the statutory amendments, in the language of the Directive or in the travaux préparatoires to which we were taken, which supports such a construction. On the contrary: the Directive requires the complainant to establish facts from which it may be presumed that there has been discrimination by the alleged discriminator.

30. We add that we were not persuaded by the argument advanced by Mr. Troop that the language of the Burden of Proof Directive does not assist because Art. 4(2) of that Directive allowed a Member State to introduce rules of evidence more favourable to plaintiffs, and that similar provisions were included in the Race Directive and the Framework Employment Equality Directive. The amendments were all made by Regulations made pursuant to s. 2 of the European Communities Act 1972 and we would have expected statutory amendments, if they went beyond obligations imposed by Directives, to have been signposted more clearly and to have been effected by primary legislation rather than by Regulations.

31. The scheme of the statutory amendments appears to us simple and to make good sense given that a complainant can be expected to know how he or she has been treated by the respondent whereas the respondent can be expected to explain why the complainant has been so treated. Of course there may be cases where the complainant will have difficulty in proving that it was the employer who committed the unlawful act. But that is a difficulty faced by many who feel aggrieved and would wish to obtain redress through the courts or the tribunals. The complainant may have no less difficulty in establishing others of the essential facts, but that does not mean that it is sufficient for the complainant to prove only the possibility rather than the probability of those other facts at the first stage.

32. The EAT has read too much into the word "could" without appreciating that its use is linked to the assumption "in the absence of an adequate explanation". The very word "explanation" seems to us a pointer to the legislative intention that the respondent should explain why he has done what he has been proved by the complainant to have done, rather than to the respondent having to prove the fact that it was not he who did it at all.

33. Finally, if there is any doubt at all as to the correct interpretation, it must surely be resolved by the consideration that, if the EAT is right, a very real injustice may be done to the respondent. Take any case where there is a possibility that the alleged discriminator, through an employee, has done the unlawful act but there is also a possibility that a person who has nothing to do with the respondent did it, and the respondent not only does not know any more than the complainant does but has no means of proving that it was not his employee who committed the act. What is the justice of imposing the burden of proof and hence liability on him rather than the complainant? We would add that it does not appear to us to be a sound basis for deciding whether the requirements of the first stage are satisfied by counting heads, in the example given by the EAT as set out in para. 26 above. Once it is accepted that the mere possibility of an employee having uttered the word "Paki" is sufficient to satisfy the first stage requirements, the burden of proof must shift, whether or not employees outnumber non-employees.

34. We also heard argument on the need for there to be a comparator in the ingredient of less favourable treatment which the complainant must prove for there to be sexual or racial discrimination. However there was no real dispute before us on this point. That a comparison must be made is explicit in the language of the definition of discrimination. In s. 1(1)(a) of the SDA one finds "he treats her less favourably than he treats or would treat a man". In s. 1(1)(a) of the RRA one finds "he treats that other less favourably than he treats or would treat other persons". The comparison must be such that the relevant circumstances of the complainant must be the same as or not materially different from those of the comparator. It is trite law that the complainant need not point to an actual comparator. A hypothetical one with the relevant attributes may do. Our attention was drawn to what was said by Elias J., giving the judgment of the EAT in The Law Society v Bahl [2003] IRLR 640 at paras. 162 and 163. There it was held that it is not obligatory for ETs formally to construct a hypothetical comparator, though it was pointed out that it might be prudent to do so and that the ET might more readily avoid errors in its reasoning if it did so. Similarly, when Bahl went to appeal, this court ([2004] IRLR 799 at para. 156) said that it was not an error of law for an ET to fail to identify a hypothetical comparator where no actual comparator can be found. However, this court also said that not to identify the characteristics of the comparator might cause the ET not to focus correctly on what Lord Nicholls in Shamoon v Chief Constable of the RUC [2003] IRLR 285 at para. 7 called "the less favourable treatment issue" (viz. whether the complainant received less favourable treatment than the appropriate comparator) and "the reason why issue" (viz. whether the less favourable treatment was on the relevant proscribed ground). The importance of a failure to identify a comparator or the characteristics of the comparator may vary from case to case, and may be thought to be of particular relevance to the appeal in Emokpae v Chamberlin Solicitors [2004] UKEAT 0989_03_1506.

35. Finally, we should refer to a dispute on whether para. (10) of the Barton guidance requires modification. In Emokpae His Honour Judge McMullen Q.C., giving the judgment of the EAT, held that the reference in para. (10) to the words "no discrimination whatsoever", which are taken from the Burden of Proof Directive, was inappropriate because they concerned not the definition of or the ingredients in discrimination but merely the forms of discrimination. Instead Judge McMullen suggested that para. (10) be rewritten to read:

    "To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was not significantly influenced, as defined in Nagarajan v London Regional Transport [2000] 1 AC 501, by grounds of sex."

    That was a reference to the following passage in Lord Nicholls' judgment in Nagarajan at pp. 512, 3:

    "Decisions are frequently reached for more than one reason. Discrimination may be on racial grounds even though it is not the sole ground for the decision. A variety of phrases, with different shades of meaning, have been used to explain how the legislation applies in such cases: discrimination requires that racial grounds were a cause, the activating cause, a substantial and effective cause, a substantial reason, an important factor. No one phrase is obviously preferable to all others, although in the application of this legislation legalistic phrases, as well as subtle distinctions, are better avoided so far as possible. If racial grounds or protected acts had a significant influence on the outcome, discrimination is made out."

36. Miss Slade supported the correctness of that amendment to para. (10). Mr. Allen cogently criticised it as based on a misreading of the relevant Directives and he drew particular attention to the French version of them. We think it sufficient to say that we see no reason to change the original para. (10). In Nagarajan, a race discrimination case, unsurprisingly there does not appear to have been any consideration of the Burden of Proof Directive relating to sex discrimination. That Directive is emphatic in its definition in Art. 2(1) of the principle of equal treatment as meaning that there shall be no discrimination whatsoever based on sex, either directly or indirectly, and in requiring by Art. 4(1) that once the burden shifts for the second stage it is for the respondent to prove that there has been no breach of that principle. In Art. 2(1) of the Framework Employment Equality Directive there is a definition of the principle of equal treatment to similar effect (viz. "there shall be no direct or indirect discrimination whatsoever on any of the [proscribed] grounds"). Only in the definition of the principle of equal treatment in Art. 2(1) of the Race Directive is the word "whatsoever" omitted, but it would be idle to suggest that that omission entails a meaning different from that of the other Directives. The language of the definitions in the French texts of the three Directives is in effect the same.

37. In any event we doubt if Lord Nicholls' wording is in substance different from the "no discrimination whatsoever" formula. A "significant" influence is an influence which is more than trivial. We find it hard to believe that the principle of equal treatment would be breached by the merely trivial. We would therefore support the original para. (10) of the Barton guidance and, consistently therewith, a minor change suggested by Mr. Allen to para. (11) so that the latter part reads "it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question".

    The appeals

38. We come now to the circumstances of the three appeals.

    (I) Wong v Igen Ltd.

39. The applicant, Ms. Kay Wong, was employed by Leeds Careers Guidance ("LCG"), the predecessor in title to the appellant, Igen Ltd, in October 1988 as a Careers Adviser specialising in assisting young people to find work. In 1999 she transferred to a new project, The Learning Gateway, the purpose of which was to work with young disaffected people. Her role was to act as a personal adviser to particular individuals.

40. Ms. Wong complained to an ET about her treatment between September 2001 and June 2002. She alleged that she had been unlawfully discriminated against by LCG and Beverley Parsons, her line manager, Christine McNiven, her senior manager, and Liz Green, the Personnel Manager. Those individuals are all white. Ms. Wong is of Afro-Caribbean racial origins. On 10 July 2002 she applied to the ET, complaining against LCG and the three managers of race discrimination, harassment and victimisation. She said she had been less favourably treated in three ways: (a) she had not been allowed to attend a Personal Adviser diploma course; (b) she had been subjected to an unduly critical Individual Performance Review ("IPR") in April 2002; (c) inappropriate and unfair disciplinary proceedings had been pursued against her because (i) she refused to sign the IPR and to accept the assessment in it or to appeal against it, and (ii) she had complained of having been victimised and harassed but had failed to withdraw or justify her complaint.

41. Her complaint was heard by an ET in Leeds over four days. By a decision sent to the parties on 7 October 2003 the ET dismissed complaints (a) and (b), but upheld complaint (c). Applying the Barton guidance, it held that it could infer discrimination against Ms. Parsons, Ms. McNiven and Ms. Green in the absence of an adequate explanation and went on to hold that those individuals had not adequately explained the totality of their actions and had not proved that the treatment of Ms. Wong was in no sense whatsoever on the grounds of her race. The ET also found that LCG was liable under s. 32(1) of the RRA for the actions of the individuals.

42. On appeal by LCG, Ms. Parsons, Ms. McNiven and Ms. Green (together "the Appellants") the EAT on 12 May 2004 dismissed the appeal. Permission to appeal to this court was granted by Mummery L.J. on the papers.

43. Before us Miss Slade, appearing with Mr. Richard Leiper for the Appellants, submitted that (i) the ET erred by not specifying the primary facts it relied upon to justify concluding in para. 55 of its decision:

    "we take the view that it could be open to us to draw an inference of discrimination",

    and by not setting out the process by which it could draw that conclusion; and (ii) the ET wrongly found that the Appellants had failed to discharge the burden of proof once it had transferred to them.

44. On the first point Miss Slade suggested that the ET failed to take into account the Appellants' adequate explanations and failed to make adequate findings in relation to each of the individual Appellants. She pointed out that the only facts directly linked to race were those found in para. 55 that Miss Wong is from a minority ethnic origin whereas Ms. Parsons, Ms. McNiven and Ms. Green are all white Europeans. Miss Slade described the ET as going too far into the realms of conjecture or speculation from the limited facts found by it and as making too great a leap when it said (in para. 55):

    "On the basis of the primary facts found by us it seems to us that it would be open to us to conclude that Ms. Parsons resented her authority being challenged by the applicant, by reason of her ethnic origins, and that Ms. McNiven and Ms. Green closed ranks against the applicant to support Ms. Parsons and to try and compel the applicant to "toe the line"."

45. On her second point Miss Slade submitted that the ET may have identified alternative, non-discriminatory reasons had it constructed a hypothetical comparator. She said that its failure to do so raised doubts as to whether the ET had properly considered all potentially relevant explanations when identifying whether or not unlawful discrimination existed. She complained that the ET failed to take into account the unhelpful conduct of Miss Wong and her representative, Mr. Dawes. She contended that the discrimination found must have been subconscious but said that the ET failed to explain how it reached that conclusion. She further pointed to the favourable finding by the ET that Ms. Parsons carried out the IPR in good faith and suggested that the ET failed to consider the inherent unlikelihood of Ms. Parsons being motivated by race on that occasion but not on another.

46. Mr. White, appearing with Mr. Laddie for Ms. Wong, submits that no error of law is disclosed by the ET's decision as upheld by the EAT. He argues that the ET did set out at length the facts found in relation to what the ET considered to be the Appellants' unreasonable conduct including their inability to provide any satisfactory explanation for what the ET plainly regarded as a strikingly unreasonable aspect of its conduct, namely transferring Ms. Wong back to her previous job in advance of a disciplinary hearing and without prior consultation with the employee. He further submits that it is clear from the authorities that unexplained unreasonable conduct is capable of giving rise to an inference of unlawful discrimination. He points out that the ET did record matters such as the intransigence of Ms. Wong in refusing to comply with LCG's established procedures and the uncooperative stance of Mr. Dawes, which formed the basis of the Appellants' explanation of their conduct. He stresses that there is no perversity challenge to the ET's decision.

47. Because of the nature of the challenge to the ET's decisions we shall go in a little more detail through how the ET arrived at its decision. The ET in paras. 1 – 31 of its Extended Reasons set out what it called the relevant facts. It then referred to the applicable statutory provisions before considering the way Ms. Wong's case was put. It made findings destructive of what we have called (in paras. 40 and 41 above) complaints (a) and (b) before turning to complaint (c) in paras. 40ff. It said:

    "40. Thereafter, we find many of the respondents' actions difficult to understand. It is of course a difficulty to have an employee who does not comply with procedures to the precise letter and it is a difficulty when an employee makes allegations of victimisation, harassment and discrimination against her line manager. It does seem to us however, that the application of some common sense at an early stage would have defused the situation. The respondents, be it Ms. Parsons, Ms. McNiven or Ms. Greene could have taken the applicant's response of 19 April as an appeal and set up an appeal hearing, or could have taken her refusal to confirm that she intended to appeal, as an indication that she did not want to do so. Her actions were capable of either interpretation and as long as the position was made sufficiently clear to her, it would be in the applicant's own hands to correct the position were that to be necessary.

    41. As to the complaint made against her manager, this was potentially a very serious matter. To suggest that a manager had failed properly to appraise her performance because she had spoken out about training procedures was a serious complaint to make. That complaint came to the attention of Ms Greene, who told us that she was a very experienced Personnel Manager. The complaint could, and should have been flushed out. Ms Greene or her assistant, Mr Stokes, could have been sent to sit down with the applicant to make it clear that her complaint was being taken seriously and the applicant could then have been compelled either to withdraw her complaint, if it was baseless, or to provide specific information which would have been required to have launched a proper investigation. By placing the onus upon the applicant, as happened in Ms. Greene's memorandum of 1 May 2002, to embark upon formal procedures or to herself seek out Mr. Stokes simply sowed the seeds of what was to follow.

    42. It was unreasonable of Ms Greene to have attended the meeting on 31 May , without giving the applicant prior warning of her intention to do so. This meeting was also an opportunity for a skilled and sympathetic manager to have listened to the applicant, and to her complaints. She was after all meeting with her senior manager with a view to doing just that. Instead Ms Greene turned the meeting into a confrontational meeting which then revolved around what was coming to be the obsessional demand for the IPR form to be properly completed. All hope that the applicant was going to consider Ms Greene, or those who worked with her, as being an avenue for receiving counselling and support in respect of the alleged harassment, went out of the window when Ms Greene started using the language of lawyers and threatening the applicant with breach of contract and disciplinary proceedings. In our view the applicant was entitled to take the view that Ms Greene was conducting herself as if she was defending someone, namely Ms Parsons, as against her, the complainant. She had reason to believe, in those circumstances, that she was not going to get a fair hearing.

    43. The pressure was then increased on 5 June. She found herself in a formal meeting, where the person against whom she was pursuing a complaint was present, supported by her manager, and she was not permitted representation herself. Once again, Ms Parsons and Ms NcNiven conducted that meeting in a way which was designed to inflame the situation, not to resolve it. As a consequence she was transferred back to become a Careers Adviser once again. Ms Greene was unable to explain the rationale behind that move. To begin with it was being suggested that the respondents were entitled to do it under the terms of their disciplinary procedure. It is true that in the disciplinary procedure, as set out in the Handbook, relegation or transfer is an option as an alternative to dismissal after a full formal Disciplinary Hearing has taken place. No such disciplinary hearing had, of course, taken place. Ms Greene then suggested that the respondents were contractually entitled to effect this change, as it did not involve an alteration to the applicant's terms and conditions of employment. She then however conceded that with her personnel knowledge and experience it would be highly unusual for such a transfer to be imposed upon an employee without any prior discussion or consultation.

    44. The issue of the unsigned IPR Form and the refusal to withdraw or pursue the harassment complaint was then formalised into a disciplinary matter. Thus, the respondents became more and more entrenched and a sensible resolution to what was, in reality, a trivial issue, became more and more remote.

    45. The applicant then consulted with Mr Dawes, clearly an experienced trade union officer. At an early stage Ms Green had suggested that the applicant should seek advice either internally or externally and sensibly, she had done just that. That was, as it turned out, the final opportunity that the respondents had to resolve the situation. Skilled and sympathetic managers dealing with a professional trade union official should have been able to achieve a situation where the applicant could have been persuaded to confirm whether she wished to appeal the IPR or not and whether she wished to formally pursue the harassment procedure or not. As the applicant told us, she still had faith, in the Chief Executive, Mr Higginbotham, she did not see him as being tainted in the same was as she viewed Ms Parsons, Ms NcNiven and Ms Greene. There were, in our view, many routes by which Mr Dawes could have assisted the respondents to achieve a solution that was mutually acceptable to the respondents and to the applicant. That was an opportunity that Ms Greene should have seized with both hands.

    46. Instead she continued to adopt an inflexible and officious approach. True it is that she was not helped by the applicant or by Mr. Dawes, who refused to disclose precisely what his credentials were. As however the Tribunal put to Ms Greene in the situation in which she had found herself, anybody who had the trust of the applicant and who was able to enter into sensible dialogue could, potentially, have provided a way out of this impasse."

48. The ET then directed itself correctly by stating that unreasonable behaviour was not the same as discriminatory behaviour. It referred to the judgment of the EAT in Bahl and to Elias J.'s remarks ([2003] IRLR 640 at para. 100) that where the alleged discriminator acts unreasonably, an ET will want to know why he has acted in that way, and (at para. 101) that the significance of the fact that the treatment is unreasonable is that an ET will more readily in practice reject the explanation given than it would if the treatment were reasonable and that, if the reason is not accepted, it may be open to the ET to infer discrimination.

49. The ET considered (at para. 48) whether it need construct a comparator but found little purpose in doing so. It then turned to the Barton guidance and directed itself in a way which has not been criticised. It returned again to complaints (a) and (b) which it rejected. In para. 54 it considered what it called the unreasonable actions of the Appellant and whether that unreasonable conduct in itself took the complainant past the first stage, and again noted what Elias J. said about the possibility of unexplained unreasonable conduct giving rise to a situation where the ET is entitled to find discrimination. It concluded on the first stage:

    "55. At any event we take the view in this case that it could be open to us to draw an inference of discrimination. The applicant is a person from a minority ethnic origin. Her manager, Ms Parsons, her senior manager, Ms NcNiven and the Personnel Manager, Ms Greene are all white European. On the basis of the primary facts found by us it seems to us that it would be open to us to conclude that Ms Parsons resented her authority being challenged by the applicant, by reason of her ethnic origins, and that Ms NcNiven and Ms. Greene closed ranks against the applicant to support Ms Parsons and to try and compel the applicant to "toe the line".

    56. We make it clear of course that that is not a definitive finding that we make but, it seems to us, that that is a finding which, in the absence of an adequate explanation, we could have arrived at."

50. The ET then directed itself at the second stage by reference to the Barton guidance. It examined the Appellants' explanations which, they accepted, explained in part the actions of the Appellants. But they concluded:

    "60. What however the respondents have not explained to us, and indeed in part have not even tried to explain to us, is why they adopted the confrontational and inflexible approach that they did. Ms Greene could give no explanation for the confrontational tone of her memorandum of 31 May when she suggested that the applicant would be in breach of contract. She could give no adequate explanation for why she did not proactively question or investigate the allegation of victimisation and harassment. She could give no explanation for why it was thought appropriate to transfer the applicant in advance of any disciplinary proceeding without any consultation at all. She could not explain why such a confrontational approach was adopted with Mr Dawes, who may well have been able to assist the respondents, given the opportunity. Ms Greene of course was not acting on her own, she was clearly consulting with Ms. Parsons and Ms. McNiven.

    61. We are therefore driven to the conclusion that the respondents have not adequately explained the totality of their actions and have not therefore proved on the balance of probabilities that the treatment was in no sense whatsoever on the grounds of the applicant's race."

51. We recognise, as Mr. White properly acknowledged, that the ET has reached conclusions on the conduct of the Appellants which other ETs may well not have reached. But it is the tribunal of fact, entitled to use its industrial expertise to guide it in reaching its conclusions, and it has not been suggested that in doing so it was perverse. It has directed itself on the law impeccably. We do not accept Miss Slade's criticisms that it failed to make the necessary findings of primary facts from which inferences could be drawn. It is apparent that it is the finding of unexplained unreasonable conduct from which it has drawn the inferences satisfying the requirements of the first stage. Whilst we would caution ETs against too readily inferring unlawful discrimination on a prohibited ground merely from unreasonable conduct where there is no evidence of other discriminatory behaviour on such ground, we cannot say that the ET was wrong in law to draw that inference, and we repeat that there is no perversity challenge. At the second stage it did consider whether the Appellants had discharged the onus on them by their explanations, but it found those explanations inadequate for the reasons which it gave. It did expressly refer to the conduct of Ms. Wong and Mr. Dawes. The fact that one finding favourable to Ms. Parsons has been made does not preclude another finding unfavourable to her. No error of law has been disclosed.

52. For these reasons, we conclude that this appeal must be dismissed.

    (II) Emokpae v Chamberlin Solicitors

53. The applicant, Ms. Emokpae, is from Nigeria where she obtained legal qualifications. She was employed by the First Respondents, Chamberlin Solicitors, on a part time basis as a legal assistant from 29 November 2002 until summarily dismissed on 3 February 2003. The firm comprised at the material time a principal, Ms. Chamberlin, the Second Respondent, Mr. Emezie, the office manager, and approximately five solicitors and two legal assistants. It was Mr. Emezie who dismissed Ms. Emokpae.

54. She complained that she had been unlawfully discriminated against by Mr. Emezie on the grounds of her sex. The claim was put on the basis that she was dismissed because of rumours about a relationship between her and Mr. Emezie and that such rumours would not have occurred in relation to a male employee.

55. The complaint was heard by an ET sitting at London Central. The ET was faced with sharp conflicts of fact. On balance the ET preferred Ms. Emokpae's version of events and rejected the Respondent's evidence that she was dismissed because of her unsatisfactory performance. In its Extended Reasons promulgated on 21 October 2003 it found that there was a culture of rumour and gossip in the firm and that Ms. Emokpae actively participated in the spreading of gossip. It also found that Mr. Emezie acted towards Ms. Emokpae in a way that might have provoked rumours of a relationship, buying perfume for her, giving her lifts home and having a drink with her at least once. The ET took into account that a firm of solicitors working under a legal franchise, subject to good practice requirements, dismissed an employee with no warning of the charges she was to face, no opportunity to be accompanied and with no note taken of the event. The ET commented that the case was not about whether there was an improper relationship between Mr. Emezie and Ms. Emokpae (it made no findings on that) but about the reason for her dismissal.

56. The ET set out the Barton guidance and considered whether Ms. Emokpae had proved the facts required to satisfy the first stage. It said (in para. 13):

    "There was sufficient evidence to conclude that the Applicant could have been unlawfully dismissed by the Second Respondent because of rumours about a relationship between her and the Second Respondent. This was less favourable treatment on the ground of sex: such rumours would not have led to her dismissal if she had been male."

57. At the second stage the ET found that the Respondents had failed to discharge the burden of proof, and held that the firm was liable for the actions of Mr. Emezie in the course of his employment as well as finding that he knowingly aided the firm to do an unlawful act.

58. On appeal, the EAT on 15 June 2004 upheld the ET, saying that it had applied the correct legal test to a relatively simple dispute of fact. Mummery L.J., on the papers refused permission to appeal, but on a renewed application he and Dyson L.J. permitted the appeal to go ahead.

59. Although Ms. Emokpae had been represented by Counsel before the ET and the EAT, she has not appeared or been represented before us.

60. Mr. Purchase for Chamberlin Solicitors and Mr. Emezie submits that the ET, in finding that Ms. Emokpae was dismissed because of rumours about a relationship between her and Mr. Emezie, did not make a finding that she was dismissed on the ground of her sex. He submits that the last sentence in para. 13, which we have cited in para. 56 above, is wholly unreasoned. He prays in aid the reasoning of the EAT, Rimer J. presiding, in Martin v Lancehawk Ltd. UKEAT/0525/03/ILB.

61. In that case a married woman employee had an affair with a manager of the employer company. When the affair broke down, she was dismissed. She complained to an ET of unfair dismissal and sex discrimination. She succeeded in the former claim but the ET dismissed the latter. The EAT accepted her submission that the irresistible conclusion from the primary facts found by the ET was that the reason for the dismissal was the breakdown of the affair and accepted that but for her sex there would have been no affair. However, the EAT said that the reason for her dismissal was not because she was a woman. It also rejected a suggestion made on her behalf that the ET should have compared her position with that of a heterosexual male employee as a comparator, as the manager would not have had an affair with such a person. The EAT suggested that the appropriate hypothetical comparator would be a male employee with whom the manager had had a homosexual relationship which had broken down. It saw no reason for assuming that the manager would have dealt with any such male comparator differently. Accordingly the EAT dismissed the appeal.

62. Mr. Purchase relied on both aspects of the decision in Martin. He says that just as a dismissal because of the breakdown of an affair between the female complainant and a male manager is not a dismissal on the ground of the complainant's sex, so a dismissal because of rumours of a relationship between Ms. Emokpae and Mr. Emezie is not a dismissal on the ground of her sex. He also submits that just as the appropriate comparator in Martin was a male employee with whom the manager had had a homosexual affair, so in the case of Ms. Emokpae the appropriate comparator would be a male employee, with whom it was rumoured that the manager was having a homosexual relationship. He argues that there is no reason to think that such a person would have been treated any differently from Ms. Emokpae.

63. We have noted that another EAT, Wall J. presiding, in Schofield v Stuart Kaufmann, on facts very similar to those in Martin, came to a different conclusion from that reached in Martin. Rimer J. dealt with that case in his judgment and declined to follow the earlier EAT. We observe that in Schofield the EAT dealt with the case at a preliminary hearing and expressed its reasoning very briefly. We agree with the impressive reasoning of, and conclusion reached by, the EAT in Martin.

64. In our judgment, Mr. Purchase is correct in his submissions. Ms. Emokpae unequivocally asserted that she was dismissed because of the rumours. It is not enough that there would have been no rumours but for Ms. Emokpae being a woman. The ET had to be able to infer that the reason in the mind of Mr. Emezie was her sex, but the ET's acceptance of the rumours as the reason for dismissal shows that she was not dismissed on the ground of her sex. Further, the ET would have had to be able to infer that Mr. Emezie would have treated a male employee subject to similar rumours more favourably, that is to say that he would not have dismissed such a man. It is important that the comparator should satisfy the test of s. 5(3) of the SDA so that his circumstances are not materially different from those of Ms. Emokpae. There is simply no explanation of the ET's thinking on this point and no attempt has been made to identify the attributes of the comparator. To say only that the rumours would not have arisen and would not have led to Ms. Emokpae's dismissal if she had been male suggests to us that the ET has failed to focus on the necessary attribute that the comparator must be someone in the like circumstances, viz. rumoured to have had a relationship with Mr. Emezie. The obvious comparator, as in Martin, is a male with whom Mr. Emezie was rumoured to have had a homosexual affair. The ET's conclusion, with all respect to it and the EAT, is fundamentally flawed.

65. For the sake of completion we would add that the suggestion, which we are told was raised on the renewal application for permission in this court, that the comparator might be Mr. Emezie himself, cannot be sustained. This was plainly not how the ET approached the comparison and in any event Mr. Emezie, who dismissed Ms. Emokpae, could not be the comparator.

66. For these reasons we conclude that, in the light of the finding that the reason for the dismissal was the rumours and not on the ground of Ms. Emokpae's sex, her case fails at the first stage. In truth she is the innocent victim of an unfair dismissal, but, unfortunately for her, because she was employed for such a short period she cannot obtain redress for this from the ET. We would allow this appeal, set aside the order of the EAT and the decision of the ET and dismiss her Originating Application.

    (III) Webster v Brunel University

67. The applicant, Ms. Webster, is employed as a Help Desk officer providing IT support to administrative staff of the First Respondent, Brunel University ("Brunel"). She is of Asian origin. On 22 August 2003 she complained against Brunel of race discrimination as having occurred in a number of incidents, only one of which remains relevant. This was that while giving advice over the telephone on 27 May 2003 to one of three members of Brunel's accommodation office team, she heard laughter in the background and the word "Paki". In her Originating Application she makes clear her claim that she heard one of the three, Ms. Myers, Ms. Goldthorpe and Ms. Standing, use the word. Mr. Troop accepts that it could not have been Ms. Myers who used that word as Ms. Webster was speaking to her on the phone.

68. The members of the accommodation office had sought help from Ms. Webster as to the operation of the IT system. On 27 May Ms. Webster received a call from Ms. Myers as her photo editor was not working. The ET found (in para. 15 of its Extended Reasons):

    "During this conversation [Ms. Webster] heard constant laughing in the background and the words "Paki" and "e-mail" being used."

69. Ms. Webster felt, following this and a number of other incidents, that she had been "given the run around" by those who had sought her help. However, she did nothing about it until after a complaint to her line manager, Mr. Pearson, had been made against her by the Accommodation Services Manager on 28 May 2003 for her abrasive manner when she was approached for assistance. Mr. Pearson concluded that there was no evidence to support the complaint against Ms. Webster. Between 6 and 10 June 2003 Ms. Webster sought advice from Brunel's Employee Advisory Service and was advised that she could search the emails of the accommodation office staff for racist material. On 10 June she had a meeting with Mr. Pearson and informed him for the first time that when speaking to staff in the accommodation office, she had heard racist comments and she asked for access to the staff's email account to substantiate her claim. Eventually the emails were examined.

70. The conclusions arrived at by the ET on this complaint were the following:

    "106) The Tribunal finds on a balance of probabilities that the term "Paki" was said and heard by the Applicant in her conversation with Ms. Myers, on the 27 May 2003.

    107) The Tribunal further finds that the Applicant was having difficulties in dealing with the staff of the Accommodation Department, namely Ms. Standing, Ms. Goldthorpe and Ms. Myers for which the Applicant felt she was being given the run around in that the staff of the Accommodation Office should have been able to resolve their problems following the advice she had given. As a fact, the Tribunal find that the advice given had not resolved the problems.

    108) The Tribunal does not find on these facts, that an inference can be drawn that the Applicant was being given a difficult time from the Accommodation staff on account of her race. The Tribunal particularly finds that the Accommodation Office is a busy public place of the University, and that numerous visitors enter throughout the day, and for which the term "Paki" could have been used by anyone; the Accommodation Staff, as well as any visitor to the office.

    109) On looking at the emails subsequently discovered, the Tribunal finds no evidence of the term "Paki" being used, although other disparaging remarks have been used which could amount to discrimination. However, as regards the specific allegations of the Applicant, there is nothing to tie the Accommodation staff complained against, to the word "Paki", the basis for the Applicant's complaint.

    110) The Tribunal notes that a person who has a propensity to use certain words and terms, would be likely to make repeated references to such words. In this instance, the term "Paki" not having been evidenced in any documents or evidence before this Tribunal as originating from the three members of staff complained against, is significant in that it suggests that on the 27 May 2003, the term "Paki" was not used by staff in the Accommodation Department, and therefore cannot explain the behaviour that the applicant complains of receiving from the Accommodation staff, on that day, and therefore not in these circumstances, on grounds of her race.

    111) The Tribunal for completeness, has further considered whether the staff having racist tendencies, drawing on the evidence of the e-mail's subsequently discovered, had on the 27 May 2003, discriminated against the Applicant. In this respect, this Tribunal finds that the calls made to the Applicant concerning the problems encountered by the staff of the Accommodation Team, were genuine problems for which the assistance of the Help Desk was required and for which the correspondence flowing between the Applicant and the Accommodation Office staff had taken place….

    112) In these circumstances, this Tribunal does not find any acts for which the Applicant has been treated less favourably so as to amount to an act of discrimination or facts from which an inference of discrimination can be drawn, even allowing for any racist tendencies that may have existed on the part of any staff of the Accommodation Team."

71. The ET therefore found this complaint failed and also rejected Ms. Webster's other complaints.

72. Ms. Webster appealed to the EAT on the single issue of the use of the word "Paki" on 27 May 2003. Two grounds were put forward. One based on perversity was rejected. The other, raising the point on s. 54A which we have discussed in paras. 25 – 33 above, succeeded. The EAT accordingly remitted the case to a fresh ET to conclude:

    (i) what precisely occurred on 27 May 2003;

    (ii) was there a prima facie case of unfavourable treatment by someone for whom Brunel was vicariously liable;

    (iii) if so, whether Brunel could establish no less favourable treatment by one of its employees on racial grounds; and

    (iv) if not, whether Brunel had a defence under s. 32(3) of the RRA.

73. For the reasons already given in that earlier discussion we are of the view that the EAT erred in its construction of s. 54A of the RRA.

74. Mr. Troop drew our attention to other matters. He pointed out that the ET made no reference in its decision to s. 54A at all and submits that therefore it may not have applied the right test. However, it is not in dispute that the attention of the ET had been drawn to s. 54A, and we think it tolerably clear that the ET found that Ms. Webster's claim had not been proved at the first stage. She did not establish that it was Ms. Standing or Ms. Goldthorpe who spoke the word "Paki". In our judgment the ET was entitled to conclude that accordingly the claim failed. Mr. Troop also sought to rely on the evidence from the emails that other disparaging remarks which could amount to discrimination were found. But that, as the ET found in para. 109 and was entitled to find, did not assist Ms. Webster on the specific complaint which she made as to the word "Paki" on 27 May 2003.

75. For these reasons we would allow this appeal, set aside the order of the EAT and restore the decision of the ET.

    The revised Barton guidance

76. As this is the first time that the Barton guidance has been considered by this court, it may be helpful for us to set it out again in the form in which we approve it. In Webster Burton J. refers to criticisms made of its prolixity. Tempting though it is to rewrite the guidance in a shorter form, we think it better to resist that temptation in view of the fact that in practice the guidance appears to be offering practical help in a way which most ETs and EATs find acceptable. What is set out in the annex to this judgment incorporates the amendments to which we have referred and other minor corrections. We have also omitted references to authorities. For example, the unreported case referred to in para. (6) of the guidance may be difficult for ETs to obtain. We repeat the warning that the guidance is only that and is not a substitute for the statutory language.

    Annex

    (1) Pursuant to section 63A of the SDA, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities 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 claimant which is unlawful by virtue of Part II or which by virtue of s. 41 or s. 42 of the SDA is to be treated as having been committed against the claimant. These are referred to below as "such facts".

    (2) If the claimant does not prove such facts he or she will fail.

    (3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that "he or she would not have fitted in".

    (4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.

    (5) It is important to note the word "could" in s. 63A(2). At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.

    (6) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts.

    (7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 74(2)(b) of the SDA from an evasive or equivocal reply to a questionnaire or any other questions that fall within section 74(2) of the SDA.

    (8) Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining, such facts pursuant to section 56A(10) of the SDA. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.

    (9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent.

    (10) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.

    (11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since "no discrimination whatsoever" is compatible with the Burden of Proof Directive.

    (12) That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.

    (13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.

    Order: Appeal in Igen Ltd v Wong is dismissed; appeal in Chamberlin is allowed, the order of the EAT and the decision of the Employment Tribunal set aside and the originating application of the applicant dismissed; appeal in Brunel University v Webster is allowed, the order of the EAT set aside and the decision of the Employment Tribunal restored; further matters arising out of the judgment to be dealt with at a later hearing.

    (Order does not form part of approved Judgment)