New judgment: Hewage v Grampian Health Board  UKSC 37
25 Wednesday Jul 2012
On appeal from:  CSIH 4
The respondent resigned from her employment at the appellant Health Board and commenced unfair dismissal proceedings. The appellants sought to challenge the decision the staff chosen as comparators by the employment tribunal were appropriate, and also argued that the tribunal had erred in its application of the two stage burden of proof test set out in the Sex Discrimination Act 1975, s 63A and the Race Relations Act 1976, s 54A.
The Supreme Court unanimously dismissed the appeal, affirming that the employment tribunal was entitled to hold that the members of staff chosen were appropriate comparators, despite the fact the situations being compared were not the same – it was a question of fact and degree, and in this matter there was sufficient evidence they were comparable. In addition, the tribunal was entitled to draw a prima facie inference of discrimination in the respondent’s favour that the appellant had failed to rebut. When applying the test at first instance, the shift of the burden of proof to a respondent after the claimant had proved facts from which the tribunal could conclude discrimination did not diminish the initial burden of proof. It was noted that the burden of proof provisions had nothing to offer where the tribunal was in a position to make findings on the evidence, as in this instance.