Employers’ motives and the burden of proof

October 10th, 2011 by Patrick Halliday

In Gay v Sophos plc UKEAT/0452/10/LA Underhill P held that, while an employment tribunal had failed to refer to the burden of proof provisions in a claim for age discrimination, its positive findings meant that if the burden had been on the employer to show that its treatment of an employee was for reasons other than her age then that burden had been discharged.

Ms Gay was a senior employee aged 55.  She was dismissed for redundancy following a restructure.  She was not considered for any alternative roles; by contrast, younger colleagues affected by the restructure were offered alternative employment.  She claimed her dismissal was an act of direct age discrimination.  Her submissions before the Tribunal relied heavily on the reverse burden of proof:  where a complainant “proves facts from which the tribunal could… conclude in the absence of an adequate explanation that the respondent” has committed an act of discrimination then the tribunal shall uphold the complaint unless the respondent proves that he did not commit that act.  She submitted that age discrimination could be inferred from the more advantageous treatment received by her younger colleagues.

The Tribunal rejected her claim for age discrimination.  It made no reference to the burden of proof provisions in its reasons.  It did, however, reach positive findings as to various non-discriminatory reasons for Sophos’ failure to consider her for alternative employment:  her seniority meant she was an expensive employee; Sophos did not think she would be willing to consider a more junior role; and she had a bad working relationship with her manager.

Ms Gay appealed on the ground that the Tribunal had failed to apply the “reverse burden of proof”; it had not structured its decision by reference to the “two-stage” approach described in Igen v Wong [2005] ICR 931.  Underhill P was critical of the Tribunal for failing to refer to the burden of proof provisions, despite their centrality to Ms Gay’s submissions.  But he found that this failure did not render its decision wrong in law.  It is now well-established that a tribunal is not obliged to following the two-stage approach:  see Laing v Manchester City Council [2007] ICR 1519, at [71] – [77].  If, as here, the Tribunal makes a positive finding that the acts complained of were motivated by other considerations to the exclusion of the proscribed ground, that necessarily means that the burden of proof, even if it had transferred, has been discharged.

As long as the Tribunal reaches positive findings about the employer’s motives, then it matters little on whom the burden of proof may rest.