As David Reade Q.C. posted in an earlier “Littleton Comment”, the Supreme Court has recently considered a discrimination case in which it was alleged that the tribunal had misapplied the burden of proof. In rejecting that contention the Supreme Court declined to add to the well- known Igen v Wong guidance.
As David observed, Lord Hope commented (in the only reasoned judgment) that
“…as Underhill J pointed out in Martin v Devonshires Solicitors  ICR 352, para 39, it is important not to make too much of the role of the burden of proof provisions. They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other. That was the position that the tribunal found itself in in this case. It is regrettable that a final resolution of this case has been so long delayed by arguments about onus of proof which, on a fair reading of the judgment of the employment tribunal, were in the end of no real importance.”
Is it possible to detect a degree of irritation on their Lordships’ part?
Some practical implications are as follows:-
(a) The advocate’s practice of inviting a tribunal to sidestep the whole tricky business of applying the burden of proof by making specific findings of fact on the “reason why” has now been authoritatively endorsed by the Supreme Court.
(b) A positive finding of fact on “the reason why” will be difficult to challenge on appeal, which will provide an additional reason why tribunals might be receptive to an invitation to make them.
(c) The “reason why” will be (or ought to be) known to the Respondent. When acting for a Respondent it will be imperative to try to ensure in drafting the Grounds of Resistance, answering a Questionnaire or compiling a witness statement that the tribunal can “make positive findings on the evidence”. It will not be sufficient merely to pour scorn on the suggestion that a protected characteristic played a part in the conduct complained of: it will be necessary to lead cogent evidence about the reason for that conduct.
(d) Precise findings of fact on the “reason why” can defeat not only arguments about the burden of proof, but also render irrelevant debates about the correct test of causation. In the well- known case of NHS Manchester v Fecit  IRLR 64 – a whistleblowing case – the Court of Appeal held that so long as the protected disclosure had a “material influence” on the employer’s treatment, a complaint under s.47B of the Employment Rights Act 1996 would be made out. However, the fact that that is a relatively low hurdle was rendered irrelevant in that case by the tribunal’s positive findings about the reason for the treatment in question. As Elias LJ said (at para. 41), in language that is entirely consistent with the Supreme Court’s approach in Hewage
“Once an employer satisfies the tribunal that he has acted for a particular reason – here, to remedy a dysfunctional situation – that necessarily discharges the burden of showing that the proscribed reason played no part in it. It is only if the tribunal considers that the reason given is false (whether consciously or unconsciously) or that the tribunal is being given something less than the whole story that it is legitimate to infer discrimination in accordance with the Igen principles”.
(e) Claimants’ lawyers can be expected to argue that “positive findings on the evidence” are not possible, and highlight in particular the concept of unconscious discrimination. Even if that approach wins the day, and a finding of discrimination is made out after the Respondent has failed to discharge the burden of proof, it will still be open to the Respondent to argue that the act complained of would have occurred even without the discriminatory influence: see e.g. London Borough of Islington v Ladele and Liberty  IRLR 154 at para. 39. This would not of course defeat the claim itself, but could prove highly relevant in the context of remedy.
DANIEL TATTON BROWN