United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS ALTHEA S BROWN (of Counsel) Instructed by: Messrs Russell Jones & Walker Solicitors Landore Court 51 Charles Street Cardiff CF10 2GD
For the Respondent	MS SHAHEED FATIMA (of Counsel) Instructed by: Messrs Beachcroft LLP Solicitors 10-22 Victoria Street Bristol BS99 7UD


 


SUMMARY

SEX DISCRIMINATION: Burden of proof

The Tribunal in applying Igen and Madarassy were correct in their approach to primary findings and inference, particularly in relation to knowledge of the protected acts and reasons for the detriment.


 


HIS HONOUR JUDGE ANSELL

1. This is the full hearing of an appeal from a judgment of a Bristol Employment Tribunal who, following a hearing in October and November 2007, dismissed a claim alleging victimisation under section 4 of the Sex Discrimination Act 1975; reasons for the decision being sent to the parties on 28 November 2007. The original Notice of Appeal was filed on 8 January 2008 and was sifted through to a preliminary hearing by HHJ Peter Clark in an order dated 31 January 2008. At the preliminary hearing held before Mr Justice Langstaff and members on 17 April 2008, a full hearing was ordered in relation to limited grounds. Paragraph 1 of the EAT's order provides that:

"This appeal in relation to ground 6.1 (but not perversity) i.e. whether the Employment Tribunal should have found the burden of proof to be reversed and whether the Employment Tribunal approached assessment of the knowledge of Mr Johnson in a way it was entitled to do be set down for a full hearing and that all other grounds of appeal be dismissed."

We shall return to the scope of that order below.

2. The background facts are that the Appellant had been a serving police officer with Avon and Somerset Constabulary since 3 October 1983 and by 1996 he had been promoted to Inspector. In June 1999 he presented a claim to the Employment Tribunal alleging sex discrimination, alleging that in relation to his application to promotion to Chief Inspector there had been positive discrimination in the process in favour of female officers. This claim was withdrawn before the hearing; in the instant case the Employment Tribunal found that the 1999 claim was a protected act for the purposes of Section 4.
3. In 2001 he again applied for a promotion to Chief Inspector and his application was rejected in part because of remarks made in his performance development review where he had criticised superfluous HQ departments including the equal opportunity unit. His career thereafter was marked by a difficult relationship with his fellow senior officers and at times he was said to have been openly insulting and distrustful of senior colleagues.
4. On 7 May 2001 Mr House raised a grievance with the then Chief Constable in relation to his non-promotion within which he referred to:

"The action I took regarding the last promotion process".

Again the Employment Tribunal found that this grievance was a protected act.

5. In 2002 he was promoted to Chief Inspector initially being allowed to remain in Taunton where he had served most of his career, but from 2003 he was required to transfer to the headquarters unit near Portishead to become head of the Community Safety Group. One of the reasons for this move, the Employment Tribunal found, was evidence given by Chief Superintendent Snell that there were complaints about Mr House from the Police Federation in Taunton that he had given an unusually high number of written warnings to police officers within the district.
6. In December 2004 there was a continuing dispute in relation to Mr House's claim for travelling expenses between his home and Portishead. In March 2005 he applied for promotion to Superintendent, and the promotion exercise was conducted by Assistant Chief Constable Mortimore together with Mr Alan Johnson, the Human Resources Director. The score sheets were destroyed in accordance with the Respondent's usual practice, but there was evidence that Mr Mortimore gave Mr House feed-back that he was "On the cusp of promotion".
7. Meanwhile Mr House was still pursuing his claim for expenses, which initially had been rejected by Mr Francis, but on 16 June Mr Johnston overruled that recommendation and decided that Mr House did indeed qualify for travelling expenses for up to two years. However, the Claimant did not accept this and eventually raised a formal grievance on 13 September 2005 in relation to both travelling expenses and also a complaint as to why he claimed that his initial move to Portishead was unfair. The grievance was referred to Assistant Chief Constable Hanson, who adjudicated upon the matter on the 21 October. He purported to uphold the travelling expenses claim, agreed to ask Mr Johnston to review policies on moves and also spoke to senior officers who had been the subject of a complaint by Mr House. Again Mr House did not accept the adjudication, and in writing to Mr Hanson on 2 November claimed that he was a subject of victimisation from senior officers as a consequence of taking the legal action in 1999. Again the Employment Tribunal found this note was a protected act.
8. In late 2005 the Employment Tribunal found that the force's Chief Officer Group would have held their quarterly succession planning meeting and Mr Johnston accepted in cross-examination that the Superintendent promotion would have been discussed. The Employment Tribunal expressed surprise that none of the five witnesses before them who attended that meeting had any recollection of this being mentioned and that notes of the meeting had been destroyed.
9. In early 2006 Mr Mortimore had prepared Mr House's personal review for 2006 setting out objectives for the year which made reference to Mr House's interpersonal skills and his relationship with senior managers. This produced "an outrage response" from Mr House and a grievance, dated 25 January 2006, addressed to Mr Hanson.
10. Shortly thereafter Mr Mortimore was required to endorse Mr House's promotion application, the purpose of which was partly to verify the matters set out in the application and partly to give an overall assessment of him on a scale to 1 to 4. Mr Mortimore's mark was only 2; thereafter the application went to the sifting board consisting of Mr Johnston and Chief Superintendent Marsh. Mr Johnston marked Mr House's equal lowest of the applicants. Mr Marsh's score sheet had shown a higher score but after discussion with Mr Johnston the score fell. On 10 February Mr House raised a grievance to the diversity unit about Mr Mortimore's conduct which was dealt with by Mr Hanson. This created difficulties as Mr Mortimore was of the same rank as him and he therefore decided to see Mr House on 2 March to try and find an agreed way forward in relation to one of the complaints concerning the promotion application. Mr Hanson accepted that he had agreed to set up a panel of three persons although by 7 April 2006 Mr House had been informed by Mr Hanson that he had decided not to convene a panel although he had spent some time looking at Mr House's application against the competencies. Thereafter Mr Hanson withdrew from the process and matters drifted leading to the Employment Tribunal application being instituted on 9 June 2006. The Chief Constable eventually adjudicated in September upon the grievance against Mr Mortimer and he did not uphold Mr House's complaint. The panel also noted that Mr House had been overlooked for two temporary promotions to Superintendent.
11. In their conclusions the Employment Tribunal noted that although Mr House's claim had been brought on the basis that many of his grievances and complaints were protected acts, many of them did not in fact refer to the discrimination proceedings and appeared to be based either on his continuing claim for travelling expenses or his general grievances against other senior staff, and they therefore found the only protected acts were the original proceedings in 1999, the grievance of 7 May 2001 and the final note of 2 November 2005. The two acts of detriment found by the Employment Tribunal were firstly the failure to short list for promotion, where the alleged perpetrator was Mr Johnston, and the failure of Mr Hanson to proceed with the re-marking panel.
12. As far as Mr Johnston was concerned the Employment Tribunal found that he was not aware of any of the three protected acts and therefore they could not have been significant factors in the decision not to short list Mr House for promotion. The Tribunal found that even if they were wrong as to the issue of knowledge the issues present in Mr Johnston's mind were matters other than the protected acts, namely the grievance as regards travel expenses and Mr House's complaints about his personal development review, and therefore the burden of truth did not transfer to the Respondent. The Employment Tribunal went on to consider the position if the burden had transferred; they did not consider that Mr Johnston's explanation of his input into the decision not to short list Mr House was satisfactory, and therefore they would have concluded that if the burden had passed to the Respondents they would have failed to counter it.
13. As far as the allegation against Mr Hanson is concerned, whilst the Employment Tribunal found that he had knowledge of the protected acts they were not prepared to draw the inference that those protected acts were a significant factor in his decision not to proceed with the review panel, and therefore found that the burden did not shift.

The law

14. The relevant provisions for this appeal are firstly Section 4 of the Sex Discrimination Act 1975, which provides that:

"4 Discrimination by way of victimisation

(1) A person ("the discriminator") discriminates against another person ("the person victimised") in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has—

(a) brought proceedings against the discriminator or any other person under this Act or the Equal Pay Act 1970 [or sections 62 to 65 of the Pensions Act 1995], or

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act or theEqual Pay Act 1970 [or sections 62 to 65 of the Pensions Act 1995], or

(c) otherwise done anything under or by reference to this Act or the Equal Pay Act 1970 [or sections 62 to 65 of the Pensions Act 1995] in relation to the discriminator or any other person, or

(d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act or give rise to a claim under the Equal Pay Act 1970, [or under sections 62 to 65 of the Pensions Act 1995],

or by reason that the discriminator knows the person victimised intends to do any of those things, or suspects the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith.

(3) For the purposes of subsection (1), a provision of Part II or III framed with reference to discrimination against women shall be treated as applying equally to the treatment of men and for that purpose shall have effect with such modifications as are requisite.

…

5 Interpretation

(1) In this Act—

(a) references to discrimination refer to any discrimination falling within[ sections 1 to 4],

and related expressions shall be construed accordingly

…

63 Jurisdiction of [employment tribunals]

(1) A complaint by any person ("the complainant") that another person ("the respondent")—

(a) has committed an act of discrimination against the complainant which is unlawful by virtue of Part II,"

…

"63A Burden of proof: employment tribunals

(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 harrassment] 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 [or harrassment] 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.]"

15. Before us the parties agreed that in order to establish the existence of victimisation under section 4 the Claimant had therefore to prove that a) he did a protected act and b) he was treated less favourably than the person who had not done the protected act was, or would have been, treated and c) he was treated less favourably by a person who i) knew that the Claimant had done the protected act, or ii) knew that the Claimant intended to do a protected act, or iii) suspected the Claimant had done a protected act, or iv) suspected the Claimant intended to do a protected act, and the less favourable treatment was by reason of the protected act.
16. It is also clear that by virtue of Section 5 and Section 63 a complaint of discrimination within the employment field (Part II) includes an allegation of victimisation and therefore the burden of proof provisions in section 63A apply to victimisation claims under Section 4.
17. Both Ms Brown on behalf of Mr House and Ms Fatima on behalf of the Chief Constable referred us, as they had below, to the two recent Court of Appeal decisions on Section 63A namely Igen Ltd & Ors v Wong [2005] ICR 931 and Madarassy v Nomura [2007] IRLR 246. Igen had given approval to the guidance that this court gave in Barton v Investec Securities Ltd [2003] ICR 1205 and in the annex to the decision set out the Barton guidelines with some amendments.

Annex

"(1) Pursuant to section 63A of the1975 Act, 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 2, or which, by virtue of s. 41 or s. 42 of the 1975 Act, 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 1975 Act from an evasive or equivocal reply to a questionnaire or any other questions that fall within section 74(2) of the1975 Act.

(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 employer.

(10) 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.

(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 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 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.

We also set out key paragraphs from the judgment given by Peter Gibson LJ:

"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. http://www.bailii.org/ew/cases/EWCA/Civ/2003/544.html[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 http://www.bailii.org/uk/cases/UKEAT/2003/0596_02_1607.html[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.

18. In Madarassy the Court of Appeal addressed the issue as to what evidence from the respondent is relevant at the first stage. Their conclusions were set out in the judgment of Lord Justice Mummery from paragraphs 63 onwards:

"63. There was substantial argument (supplemented by written submissions after the hearing) on the construction of the expression "in the absence of an adequate explanation" in the opening part of section 63A(2) and its implications for the evidence which the tribunal could consider at the first stage.

64. Igen v. Wong (paragraph 22) held that this expression indicates that, in considering what inferences or conclusions could be drawn from the primary facts (stage 1), the employment tribunal is required to make an assumption,

"22. …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."

65. There has been a debate in the cases and on this appeal as to what evidence from the respondent is relevant at the first stage. It was observed in Igen v. Wong (paragraph 24) that the language of section 63A(2) points to the complainant having to prove facts, but there is no mention of evidence from the respondent. The Court added that it would be unreal if the employment tribunal could not take account of evidence from the respondent, if such evidence assisted the employment tribunal to conclude that, in the absence of an adequate explanation, unlawful discrimination by the respondent on a proscribed ground would have been established. The court referred to the examples given in Barton of unsatisfactory conduct of the respondent being relevant to the drawing of inferences at the first stage: for example, an unsatisfactory response to the statutory questionnaire or a breach of the code of practice by the respondent.

66. We should take this opportunity to consider the relevance of the respondent's evidence at the first stage. This point has been contentious in the appeal and is of practical importance.

67. As Elias J pointed out in Laing, the evidence from the respondent at the first stage goes wider than the particular examples given in Igen v.Wong (paragraph 24). It was argued in Laing (paragraph 56) that the only material that the tribunal can consider at the first stage is the evidence adduced by the complainant together with any evidence adduced by the respondent which assists the tribunal in reaching the conclusion that a prima facie case has been made out. It was argued that the tribunal must not consider, however, any other evidence, such as evidence from the respondent pointing the other way and tending to undermine the complainant's case.

68. In Laing, for example, the key factor which caused the complainant to fail at the first stage was the respondent's evidence that the complainant was indiscriminately treated by the alleged discriminator in the same way as all subordinate employees. (This point was also made by Nomura in its evidence to the tribunal in response to many of Ms Madarassy's individual allegations of discrimination.) In Laing the complainant objected that this was part of the respondent's "explanation" which, in accordance with section 63A(2), had to be ignored at the first stage.

69. The Employment Appeal Tribunal (Elias J presiding) in Laing rightly rejected the complainant's submission. It accepted the respondent's submission that, at the first stage, the tribunal should have regard to all the evidence, whether it was given on behalf of the complainant or on behalf of the respondent, in order to see what inferences "could" properly be drawn from the evidence. The treatment (or mistreatment) of others by the alleged discriminator was plainly a highly material fact. All the evidence has to be considered in deciding whether "a prima facie case exists sufficient to require an explanation." (paragraph 59). The only factor which section 63A(2) stipulates shall not form part of the material from which inferences may be drawn at the first stage is "the absence of an adequate explanation" from the respondent.

70. Although no doubt logical, there is an air of unreality about all of this. From a practical point of view it should be noted that, although section 63A(2) involves a two stage analysis of the evidence, the tribunal does not in practice hear the evidence and the argument in two stages. 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.

71. Section 63A(2) does 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 may adduce evidence at the first stage to show that the acts which are alleged to be discriminatory never happened; or that, if they did, they were not less favourable treatment of the complainant; or that the comparators chosen by the complainant or the situations with which comparisons are made are not truly like the complainant or the situation of the complainant; or that, even if there has been less favourable treatment of the complainant, it was not on the ground of her sex or pregnancy.

72. Such evidence from the respondent could, if accepted by the tribunal, be relevant as showing that, contrary to the complainant's allegations of discrimination, there is nothing in the evidence from which the tribunal could properly infer a prima facie case of discrimination on the proscribed ground. As Elias J observed in Laing (at paragraph 64), it would be absurd if the burden of proof moved to the respondent to provide an adequate explanation for treatment which, on the tribunal's assessment of the evidence, had not taken place at all.

73. Mr Allen disputed the correctness of the judgment of the Employment Appeal Tribunal in Laing on this point. Mr Allen took up rather an extreme position on the construction of "in the absence of an adequate explanation."

74. Mr Goulding's position was that the effect of the expression was that at the first stage the tribunal must disregard altogether (or "put on one side") any possible explanation by the respondent.

75. Mr Allen's position, on the other hand, was that under section 63A(2) it must be presumed at the first stage that the respondent had no adequate explanation. This presumption then assisted the complainant in securing the reversal of the burden of proof. He relied on Igen v. Wong (paragraphs 21 and 22) to support this submission.

76. In my view, Mr Allen's submission goes further than Igen v. Wong warrants. He argued for a presumed lack of an adequate explanation providing "a material premise" for the reversal of the burden of proof. The "absence of an adequate explanation" may, he said, be the only basis on which the tribunal could infer that a significant ground for the treatment of the complainant was a proscribed one.

77. 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 v. Wong, which is probably more favourable to Mr Allen than to Mr Goulding, 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. In Igen v. Wong the court did not go so far as to say that there was a "statutory presumption that there was no adequate explanation" for the respondent's treatment of the complainant and that there was therefore discrimination on a proscribed ground and that this presumption alone caused the burden of proof to move to the respondent.

78. I would add that I do not think that there is much to be gained in this context by invoking or analysing possible distinctions between "explanations", "reasons" and "facts" that were debated in argument and have featured in some of the recent authorities.

79. I do not accept Mr Allen's submission on the construction of the expression "in the absence of an adequate explanation" or his criticisms of Elias J in Laing. It seems to me that the approach of Elias J is sound in principle and workable in practice. This court should approve it. No alteration to the guidelines in Igen v Wong is necessary."

19. Before us we did not hear extensive argument from either counsel as to the effect that Madarassy has had on the Igen v Wong guidance. Ms Brown has suggested to us that there is now considerable confusion as to whether Respondent's explanations are to be considered at the primary fact-finding stage before the burden shifts or at stage two when the employer is seeking to discharge that burden; we shall return to this issue below. We therefore return to the Employment Tribunal's conclusions in this case and the criticism contained in the Grounds of Appeal. We shall consider firstly the Johnston detriment, namely the failure to short list for promotion, and then the Hanson detriment, the failure to proceed with the re-marking panel.

Mr Johnston

20. The ET's conclusions on Mr Johnston were contained in paragraphs 88-89 and 91-95:

"88. The extent of Mr Johnston's knowledge was dealt with in some detail in cross-examination.

"I was not aware of any previous litigation.

Q. Not litigation necessarily but general challenging?

A. I met the claimant for the first time about travel expenses. He raised re-location issues. That was the extent of my knowledge.

…

I became aware of allegations much later – during the process of travel expenses. He made me aware of these allegations…The claimant made me aware of allegations he had made against the constabulary, but not individually. He said that he felt that he had been passed over for promotion unfairly in his view.

…

I guess that by early 2006 having spoken to Mortimore, Otter and Hanson it was obvious that there was interaction with Chief Officers' group."

89. Given that we are unaware of what was said in these conversations with Messrs Mortimore, Otter and Hanson, we have to decide about the extent of Mr Johnston's knowledge. We are satisfied that Mr Johnston was aware of what the Chief Officers' Group thought of the claimant and that this was in his mind when he assessed the claimant, but, in the face of his denial of any knowledge, we have no basis for finding that he was aware of any of the three protected acts. This absence of actual knowledge of the protected acts is, in our view, fatal to the claimant's case in relation to his detriment.

…

91. We next have to consider whether, in accordance with Igen v Wong [2005] ICR 931 and Madarassy v Nomura [2007] IRLR 246 there are facts from which the possibility of victimisation under the Sex Discrimination Act 1975 can be inferred. It is not sufficient for the claimant to show a protected act, knowledge and detriment. There must be something to link the three.

92. Since we have found that Mr Johnston did not know about the protected acts, it follows that such acts could not have been a significant factor in his detrimental actions towards the claimant. Even if, contrary to our finding, Mr Johnston knew of the 1999 proceedings and of the November 2005 file note, can we infer that this affected his mind? In the claimant's favour is that Mr Johnston was aware of the claimant's reputation. On the other hand, the claimant's reputation went far beyond the 1999 proceedings and the November 2005 file note. The most obvious issues present in Mr Johnston's mind would have been the Travelling Expenses grievance and, possibly, the fuss the claimant was making about his 2006 PDR. It seems overwhelmingly unlikely that Mr Johnston, or the people he had been talking to, were particularly concerned about a claim brought seven years previously and abandoned or a grievance raised in 2001 about this and other matters.

93. We have come to the conclusion, therefore, that, even if he knew of the protected acts, or any of them, the burden of proof does not transfer to Mr Johnston to explain his decision not to promote the claimant.

94. If we are also wrong about this, we proceed to look at Mr Johnston's explanation for not selecting the claimant for interview. He says that he was not influenced by Mr Mortimore's Indorsement . Mr Johnston marked the claimant at the bottom of the 16 candidates. We have not heard from Mr Marsh, but his form shows a number of changes in the marking in the claimant's case. Over the whole range of candidates his marking was consistently lower than that of Mr Johnston but he marked the claimant highly. As stated above it appears that during the course of his discussions with Mr Johnston he reduced his marking for the claimant in 3 of the 7 categories. If his original marking had stood, together with an Indorsement of "3" by the district commander this would have resulted in a mark which, in Mr Marsh's list, would have resulted in the claimant being short-listed.

95. In assessing Mr Johnston's evidence we have to look at the wider picture.

The evidence of many witnesses, particularly Mr Mortimore and Mr Snell, that the claimant had a bad reputation with COG.

The unminuted Succession Planning meeting.

The inadequate way in which his grievance was dealt with after he had brought his present proceedings.

The unexplained decision by the COG not to offer the claimant a temporary promotion in late 2006.

The fact that, in another case, Mr Johnston had advised destroying an e-mail which tended to put the respondent's case in a bad light.

We do not, therefore, consider Mr Johnston's explanation of his input into the decision not to be short-list the claimant as satisfactory. Therefore, if we had found that the burden of proof had passed to the respondent we would have fond that they had failed to counter it."

21. Ms Brown's first criticism is in relation to the Employment Tribunal's conclusions concerning the extent of Mr Johnston's knowledge. In paragraph 89 the Employment Tribunal referred to Mr Johnston's "denial of any knowledge". She argued that this was an erroneous conclusion when, according to the Judge's notes as set out in paragraph 88, Mr Johnston admitted at some stage he was aware of allegations the Claimant had made against the Constabulary. She also argued that the Employment Tribunal's conclusion concerning Mr Johnston's "absence of actual knowledge of the protected acts" was an error of law in suggesting that only an express admission of knowledge was required. She also argued that since the Employment Tribunal, in paragraph 95, had criticised Mr Johnston's explanation of his input into the decision not to short list the claimant they were in error in failing to consider whether his denial of knowledge was therefore credible.
22. Ms Fatima argued that the issue relating to the extent of Mr Johnston's knowledge of the protected acts was not one that Mr Justice Langstaff allowed to go through to the full hearing, it being one of the perversity allegations that was expressly not allowed to proceed to a full hearing. In support of this submission she referred us to the amended Notice of Appeal which makes no reference to this issue.
23. We can see considerable force in this submission. The only difficulty we have is that if the finding that Mr Johnston did not have knowledge of the protected acts is not the subject of appeal and therefore there cannot be a finding of victimisation based on the failure to short list for promotion, it is difficult to see why the issue in relation to the burden of proof and Mr Johnston was allowed through to a full appeal, since Mr House's case would fall at the first hurdle, namely on the issue of Mr Johnston's knowledge of protected acts. Whilst the Employment Tribunal did in fact go on to deal with the burden of proof issue, it seems to us that it was purely an academic exercise in the light of these findings. We also have the benefit of a transcript of the judgment given by the EAT at the Preliminary Hearing. If one considers paragraphs 6-8 of the transcript it appears that Mr Justice Langstaff was concerned as to whether the Employment Tribunal had taken into account the inadequacies of Mr Johnston's evidence, which they set out in paragraph 96, in coming to the view in paragraph 89 that they had no basis for finding that he was aware of any of the three protected acts. However, this suggestion was not really advanced in the amended Notice of Appeal and it could well be termed an allegation of perversity which was expressly excluded by paragraph 1 of the Employment Appeal Tribunal's order.
24. We are quite satisfied that this issue was not set out in the amended Notice of Appeal; however in view of the fact that according to the transcript Mr Justice Langstaff appears to have allowed through an issue relating to Mr Johnston's knowledge we are prepared to consider this issue on its merits. In relation to the Employment Tribunal's finding as to the absence of actual knowledge of the protected acts, Ms Fatima took us to Shawn Scott v London Borough of Hillingdon [2001] EWCA Civ 2005. That case concerned an allegation of victimisation against Hillingdon by reason of a decision not to appoint to a position because of a complaint of racial discrimination previously made against Ealing Borough, and in particular the knowledge of the three councillors who had taken the decision not to employ Mr Scott of the previous Employment Tribunal proceedings. The three councillors had all denied knowledge. The Employment Tribunal had inferred knowledge from a number of facts particularly a finding that there had been regular contact between the housing departments of the two boroughs. The Employment Tribunal had approached the case on the basis of the guidance in such cases as King v Great Britain China Centre [1992] ICR 516 as to the inferring of knowledge in discrimination cases. The Court of Appeal criticised the Employment Tribunal's approach and, at paragraphs 19 – 26, Lord Justice Keene said this:

"19. I find these arguments unpersuasive. It is quite clear that, in a case of this kind, knowledge on the part of the alleged discriminator of the protected act is a pre-condition to a finding of victimisation. That is inherent in the statutory wording and it was spelt out by Lord Steyn in Nagarajan v London Regional Transport [2000] 1AC 501 at 519H, in a passage subsequently endorsed in Chief Constable of West Yorkshire v Khan [2001] UKHL 48, at para.56. Lord Steyn said of section 2(1) that it:

"contemplates that the discriminator had knowledge of the protected act and that such knowledge caused or influenced the discriminator to treat the victimised person less favourably than he would treat other persons."

20. The situation which arises under section 2(1) is therefore not identical to that with which a tribunal or court is dealing when faced with discrimination claims under section 1(1) o the Race Relations Act 1976. In the latter type of case, knowledge by the alleged discriminator of the race of the complainant will rarely be in issue. Normally the issue will centre around the effect of that knowledge: did it have a significant influence on the decision to treat the complainant less favourably? As has been emphasised many times, that influence may be one of which the discriminator may not be aware. It may have been emphasised many times, that influence may be one of which the discriminator may not be aware. It may be an unconscious influence; see Lord Nicholls of Birkenhead in Narajan, pages 511H-512D; also Glasgow City Council v Zafar at page 1664D. It was for that reason that it has been recognised that there may be special problems of proof for complainants bringing discrimination claims under section 1. Prejudice is rarely openly displayed, whether the discriminator is aware of his prejudice or not. That is what lies behind the guidance given by this court in King v Great Britain China Centre. That case was dealing with the specific difficulty facing complainants in discrimination cases of establishing that racial factors affected the decision.

21. But when one turns to whether or not a discriminator knew of a protected act, one is dealing with a different type of issue. Establishing a person's knowledge of a fact is a process required in many branches of law and not in any sense one particular to discrimination cases. There is in general usually less difficulty in establishing knowledge of a fact by means of extrinsic evidence, such as a document mentioning the fact or evidence of oral transmission of knowledge of the fact. This is not what the guidance in King v Great Britain China Centre was directed at and in my judgment it was wrong of the employment tribunal to adopt an approach apparently based on that guidance when considering the issue of the councillors' knowledge.

22. The case of O'Donoghue, also relied on by the appellant, is against not relevant on this issue. There was in that case clear evidence that some of the councillors knew of the appellant's strong feminist views. None of the councillors denied knowing of those views, which she had freely expressed over a number of years. The real issue there was not as to what the councillors knew but as to why they acted as they did. In short it was a King v Great Britain China Centre case.

23. Even in cases where the issue is whether the alleged discriminator acted as he did because of the race of the complainant, it has rightly been emphasised that there must first be primary facts from which an inference that race was the reason may properly be drawn. As was said by Balcombe LJ in Chapman v Simon [1994] IRLR 124 at para. 33(3):

"In order to justify an inference, a Tribunal must first make findings of primary fact from which it is legitimate to draw the inference. If there are no such findings, then there can be no inference: what is done can at best be speculative."

24. So the question here is whether there were primary facts found from which knowledge on the part of the three councillors of Mr Scott's complaint against Ealing could legitimately have been inferred, despite their denials of having had such knowledge at the relevant time. The employment tribunal itself said that:

"We recognise the lack of hard evidence to justify this inference."

25. The primary facts which the Tribunal did find included the contacts generally at officer level between the housing Departments of Hillington and Ealing, but there was no finding that either of the two officers involved in the initial interviewing at Hillington knew of Mr Scott's complaint against Ealing, far less that if either of them did know, such information had been passed to any of the councillors. The Tribunal rejected the councillors' own explanation of their decisions, namely that Mr Scott did not have the ability to communicate orally with a non professional audience, and it also rejected the appellant's argument that the decisions had been made because of his race. It followed from these findings that there must have been a number of other such reasons not requiring one to assume knowledge by the councillors of Mr Scott's complaint against a neighbouring borough. It did not follow from the uncertainty about the reason for the decisions that the councillors knew of Mr Scott's complaint against Ealing. That would be no more than speculation. The fact that he had changed jobs at the end of 1995 from Ealing to Kingston-upon-Thames where he obtained a lower salary was perhaps an indication that he may have wanted to move from Ealing, or that he had had difficulties at Ealing, but here could have been many possible explanations for that. It was not a pointer towards something as specific as him having made a race relations complaint against Ealing.

26. The reality is that there was no positive evidence of knowledge on the part of the three councillors. They might have had such knowledge, but that is not enough, and the primary facts found by the Tribunal, even when taken cumulatively, did not justify the inference of such knowledge. The Tribunal seems to have been conscious of the tenuous nature of its conclusion, since it was unsure as to whether it was the councillors or the officers who had the requisite knowledge or even whether it was knowledge as opposed to suspicion, the imprecise form of this conclusion reached only underlines the absence of any proper basis for drawing the inference in question."

25. Ms Fatima therefore sought to equate the Court of Appeal's requirement for positive evidence of knowledge in the Scott case with the finding in the instant case that there was an absence of actual knowledge of the protected act. She argued that the Employment Tribunal was not suggesting that there had to be an express admission by Mr Johnston but that there was a total absence of positive evidence coupled with his denial. She argued that his admission that he was aware of allegations made by Mr House against the constabulary was not clear enough evidence and fell into the category of possible knowledge but no further. We agree with these submissions. In our view there was a total absence of primary facts from which an inference could properly be drawn that Mr Johnston knew of the protected acts. Further it seems to us that the fact that there was some criticism of various aspects of his evidence in paragraph 96, would not entitle a Employment Tribunal simply to take a broad brush approach and therefore reject every single piece of evidence Mr Johnston has given. The Employment Tribunal in coming to their conclusions as to knowledge in paragraph 89 must have clearly had in mind the criticisms that they were about to make about other aspects of this evidence, and clearly must have bore those in mind when assessing his credibility. We do not find inconsistency in their approach.
26. On the basis that we cannot find fault with the Employment Tribunal's conclusions regarding Mr Johnston's knowledge, the remaining criticism of their approach concerning the Johnston detriment is as we have set out above somewhat academic as the Employment Tribunal only went on to consider the burden of proof issues if they were wrong on the knowledge issue.
27. However we will briefly consider the further arguments that Ms Brown advanced. She submitted that the Employment Tribunal failed to apply the Igen and Madarassy principles because in considering stage 1, deciding whether or not the burden had passed, the Tribunal appears to have failed to take into account its own reasons for rejecting Mr Johnston's evidence as unsatisfactory, set out in paragraph 95, and what are described in the Notice of Appeal as "other relevant findings elsewhere in the judgment"; these were not particularised for us and therefore we propose to restrict this ground simply to the criticisms as contained in paragraph 95.
28. Ms Brown argued that the Employment Tribunal should have taken into account those criticisms in considering whether the primary facts could be inferred and that had they done so the Employment Tribunal would have come to the conclusion that it was more likely than not that a detriment occurred as a result of the protected act.
29. Ms Fatima argued that the Employment Tribunal in considering the alternative situation in paragraph 92 adopted the correct approach. The Employment Tribunal at this stage were concerned with the issue of causation, namely had the Claimant established the possibility that his non-selection was by reason of one or more of the three protected acts. The Employment Tribunal were entitled to come to the conclusion that notwithstanding that Mr Johnston may have known of the protected acts his decision concerning the selection arose from other reasons, particularly the travelling expenses grievance and the 2006 PDR. She argued that any criticism of that approach was no more than a perversity suggestion, which was not a ground of appeal. Further, she argued that the criticism of Mr Johnston's evidence contained in paragraph 95 were concerns about his evidence in general in relation to the promotion issue, rather than adding to the possibility that the failure to promote was because of the protected acts.
30. Again we agree with these submissions. The Employment Tribunal had been reminded of the principles set out by Igen and Madarassy and were clear that the stage one process involved the issue of causation, namely that the possibility of non-selection was due to the protected acts, and were satisfied that the concerns they had about certain aspects of his evidence were not matters that had a direct impact upon the stage one process. Accordingly we cannot find fault with their approach and what was in any event only an issue if there was an error in the basic finding as to knowledge of the protected act.

Mr Hanson – failure to proceed with the re-marking panel

31. The Employment Tribunal's conclusions concerning Mr Hanson were set out firstly in paragraph 90 and then paragraphs 96-98.
32. The complaint as regard to Mr Hanson made by Ms Brown is that again Igen and Madarassy had been misapplied. She admitted that although the Employment Tribunal found that Mr Hanson offered no explanation for his change of mind concerning the panel, they still concluded that regardless of the absence of explanation the burden of proof had not passed and imposed their own explanation for his change of mind, namely the attitude of the COS and Mr Snell's report, notwithstanding that these matters dated back to 2003. In her submissions Ms Brown sought to widen this criticism to encompass comments about Mr Snell's evidence but, again, as there was no perversity allegation we are not prepared to consider that aspect of the matter.
33. In response Ms Fatima submitted that in paragraph 97 the Employment Tribunal were clearly still at the first stage, as described in Igen. We agree with her submission that the wording of the first sentence clearly indicates that the Tribunal were considering whether primary facts could be inferred. She then argued that the remaining findings and inferences were clearly open to the Employment Tribunal and that although Mr Hanson himself would be unable to explain his change of heart, the Tribunal was still entitled to look beyond his evidence to the overall picture as presented by the evidence before them. We agree with this approach; the Employment Tribunal clearly were obliged to find what they believed was the correct explanation for Mr Hanson's change of mind notwithstanding his failure to deal with the matter and to satisfy themselves that it was not related to his knowledge of the protected acts, particularly the file note in November 2005. Again in adopting the Madarassy approach at this first stage there was nothing to prevent the Employment Tribunal from "hearing, accepting, or drawing influences from evidence adduced by the Respondent, disputing and rebutting the Complainant's evidence of discrimination". Accordingly in relation to the Hanson allegation we can find no error.