Charles Price - RRA Drawing Inferences

Employment E-Missive No.16 - RRA Drawing Inferences

by Charles Price, LLB.(hons) LLM, barrister
No5 Chambers,
Birmingham - Bristol - London
Telephone 0870 203 5555

-------------------------------------------------------------------------------------------------------------------

1. New RRA Case Law - Drawing Inferences From Evasive Replies - but When?

2. The Vital Cases! - How to Prove Direct Discrimination
3. Apprentices Gain Promotion
4. Unfair Dismissal and the Upper Qualifying Age

5. Compromise Agreements - Warning to Slack Drafters

6. Workers on Leave and Holliday Pay - 'Kigass' Overturned

7. New Law - Can You Win Injury to Feelings Awards in Equal Pay Cases?

8. Free Seminar Notes - Whistleblowing and Protected Disclosures

-------------------------------------------------------------------------------------------------------------------

Charles Price specialises in Respondent and Claimant work in England and
Wales. This e-mail is for academic purposes only. Legal considerations must
be looked at in the light of the particular circumstances and it may be wise
to seek legal advice.

----------------------------------------------------------------------------

1) New RRA Case Law - Drawing Inferences From Evasive Replies - but When?
-------------------------------------------------------------------------------------------------------------------

Dattani v Chief Constable of West Mercia Police 7 February 2005, UKEAT/0385/04/RN
----------------------------------------------------------------------------------------------------------------------------

When determining whether race discrimination has occurred a tribunal may draw inferences from certain conduct

of the Respondent.Section 65 ( Section 74(1) SDA for sex discrimination claims with forms of questions and answers

prescribed by SI 1975/2048) states:

S.65 'Help for aggrieved persons in obtaining information etc'

(1) With a view to helping a person (“the person aggrieved”) who considers he may have been discriminated against

[or subjected to harassment] in contravention of this Act to decide whether to institute proceedings and, if he does so,

to formulate and present his case in the most effective manner, the Secretary of State shall by order prescribe –

(a) forms by which the person aggrieved may question the respondent on his reasons for doing any relevant act, or

on any other matter which is or may be relevant; and

(b) forms by which the respondent may if he so wishes reply to any questions.

(2) Where the person aggrieved questions the respondent (whether in accordance with an order under subsection (1)

(a) the question, and any help by the respondent (whether in accordance with such an order or not) shall, subject to

the following provisions of this section, be admissible as evidence in the proceedings;

(b) if it appears to the court or tribunal that the respondent deliberately, and without reasonable excuse, omitted to

reply within a reasonable period or, where the question relates to discrimination on grounds of race or ethnic or national

origins, or to harassment, the period of eight weeks beginning with the day on which the question was served on him or

that his reply is evasive or equivocal, the court or tribunal may draw any inference from that fact it considers it just and

equitable to draw, including an inference that he committed an unlawful act.'

The question which arose in this case was, May inferences be drawn from replies given by a Respondent in a form not

prescribed by the Order?

The Claimant, D a police sargeant made claims under the Race Relations Act 1976 of victimisation and unlawful race

discrimination. The central element of his complaint being his transfer from one Police Station to another. The Respondent

argued that the Claimant was transferred on the basis of an objective criterion. The employment tribunal accepted the

employer's explanation that the transfer had not been on racial grounds and dismissed the claim. On appeal, the EAT

considered whether the tribunal had correctly applied the burden of proof provisions of S.54A RRA and whether it

should have considered drawing inferences under S.65 of the Act from the employer's erroneous or misleading replies

to the employee's questions, even though those replies were not to a statutory questionnaire but in the employer's further

and better particulars, the notice of appearance and a letter.

The EAT judgment, which followed, contained justification of why inferences may be drawn if replies are evasive:

'A statutory format is provided under the Order and no doubt it is more convenient for aggrieved persons and respondents

to adopt that format. The procedure is most useful so aggrieved persons may understand the nature of any suspected

unfavourable treatment prior to launching Tribunal proceedings. It facilitates the presentation at an early stage of material

focussing upon factual matters which may be in dispute, and explanations for various forms of treatment. Thus a Tribunal

may, but is not required to, draw an inference from a nil return or from an invasive reply if it considers it just and equitable

so to do. A respondent cannot be ordered to complete a questionnaire, so the sanction for breach of a Tribunal Order is

not available if it fails to reply. That is why the facility to infer matters is included in the statute.' (para 43)

The EAT allowed the appeal on both grounds. With regard to the burden of proof, applying Sinclair Roche and Temperley

and ors v Heard and anor EAT, 2004 IRLR 763 (Brief 768), the EAT held that the tribunal had erred in taking the

employer's explanation into account when determining whether a prima facie case of discrimination had been made out.

In relation to D's appeal on the drawing of inferences, the EAT noted that it is well known that it can be drawn from an

employer's failure to reply to a statutory questionnaire or from evasive replies. This principle applies equally to replies

given in a form other than under the statutory questionnaire procedure. S.65(2) refers to questions asked by an

aggrieved person 'whether in accordance with an order under subsection (1) [i.e. the statutory procedure] or not'.

Accordingly, a respondent who fails to respond, or responds evasively, when asked a direct question found in writing by

question has been asked in a statutory questionnaire. After reading this case repeatedly it is still unclear if inferences are to be

drawn, whether those questions still have to be framed within an order or whether a failure to reply to a simple written request

from a solicitor will be enough. The EAT remitted the case to the tribunal for further consideration.

Conclusion:
-----------------

Inferences may be drawn under RRA 1976 Section 65 from material given by a respondent in response to a statutory questionnaire,

OR OTHERWISE, including a Response and additional information.

The Learned Judge McMullen draws on Barton and common law principles to justify this approach:

'This approach is made clear by the judgment in Barton where in guideline 6 (paragraph 25) there is this:

“(6) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with s.74(2)(b)

of the Sex Discrimination Act from an evasive or equivocal reply to a questionnaire or any other questions that fall within s.74(2) of the

Sex Discrimination Act: see Hinks v Riva Systems EAT/501/96.”

At common law one of the main tasks of a fact finding Tribunal is the drawing of inferences from a failure to

reply to a proper question, or an evasive reply. In certain circumstances, by statute a jury or justices can draw such inferences against

a defendant. Section 65(2), was construed by the EAT as in line with that principle.

2. Case Chain - How to Prove Direct Discrimination
-------------------------------------------------------------------------
a) Chapman/Anya - inferences
b) King - Once primary facts are decided
c) Shamoon - guidance on detriment
d) Martins - comparator
e) Igen Ltd –v- Wong - burden of proof

Chapman and another (appellants) v Simon (respondent)
---------------------------------------------------------------------------------

In cases of direct race discrimination contrary to S1(1)(a) RRA detriment is defined at S4(2)(c) of the Act.

The act must be one of which the complaint is made on the Originating Application

Primary facts must be found first from which it is legitimate to draw the inference.

Anya (appellant) v. University of Oxford and another (respondents) [2001] EWCA Civ 405
--------------------------------------------------------------------------------------------------------------------------------

The employment tribunal must make findings of primary facts first before drawing relevant inferences. In this case the ET erred

in finding the Applicant, a black man was not discriminated against on the grounds of race when a post for which he was

short-listed went to the other candidate.

The tribunal erred when it accepted the evidence of the 2nd Respondent who was the Applicant’s supervisor and a member of

the interview panel that his reasons for not choosing were nothing to do with race. Credibility is not necessarily the end of the

road, since a witness may be credible, honest and mistaken.

Totality of evidence has to be evaluated and in 'Anya' there was no way of doing that save through its parts.

Very little discrimination is overt or even deliberate. When there is a choice between 2 comparably well-suited candidates,

judgement is capable of being influenced not consciously by idiosyncratic factors especially where equal opportunities

policies were not followed.

Para 378 – When equal opportunities procedures were not followed when they should have been it may point to the possibility

of conscious or unconscious racial bias having entered the process.

King V The Great Britain-China Centre [1991] IRLR 513.
-------------------------------------------------------------------------------

Once the primary facts are decided…

(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 unusual to find direct evidence of racial discrimination. Few employers will be unwilling to admit such discrimination

even to themselves. Often such discrimination is not intentional but is based on the premise that the individual, ‘would not

have fitted in.
(3) The outcome of the case will usually therefore depend on what inferences it is proper to draw from the primary facts found

by the tribunal.
(4) Though there will be some cases where, for example the non selection of the applicant for a post or for a 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.

For a Detriment or Less Favourable Treatment
------------------------------------------------------------------

In Shamoon (appellant) v. Chief Constable of the Royal Ulster Constabulary Respondent) [2003] UKHL IRLR 285
------------------------------------------------------------------------------------------------------------------------------------------------------------------

(guidance is set out that for detriment or less favourable treatment:

‘A reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which

he had thereafter to work. An unjustified sense of grievance cannot amount to a detriment.’

More help is given in:

Martins (appellant) v. Marks & Spencer plc (respondents) IRLR 326 1998]

------------------------------------------------------------------------------------------------------------

A comparator is compulsory

The question to ask is; ‘Was the complainant treated less favourably than the employers treated or would treat another

person of a different racial group in the same or relevantly similar circumstances and if so was that less favourable

treatment? It is compulsory to make a comparison between the treatment of the complainant and the comparator.

The Claimant must go through a two or three stage process: a) Are the comparator’s circumstances relevantly similar,

only if yes then, b) was the treatment on racial grounds?

OR the hypothetical comparator:

a) Would a hypothetical comparator who was white with similar circumstances have been less favourably treated than A?

only if yes then,
b) Was the treatment on racial grounds?

-----------------------

The Regulations apply and the reversal of burden of proof applies. All of the discrimination legislation now shares the

same provision regarding the burden of proof (S63A SDA; s54A RRA; s 17A (1C) DDA; Reg 29 (SO Regs);

It reads as follows:

‘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…, or
b) is by virtue of…. 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’.

S.54 A has the effect set out in:

Igen Ltd –v- Wong (CA 18th Feb 2005) (Conjoined with Chamberlain Solicitors & anor. v Emokpae;

---------------------------------------------------------------------------------------------------------------------------------------------
Brunel University v Webster C.App, [2005] EWCA Civ 142; 18/2/05)

--------------------------------------------------------------------------------------------------

a) Once A has proved the primary facts then, in absence of an adequate explanation from the Respondents the

ET could (at this stage in considering the inferences that can be drawn, the ET assumes that there is no

adequate explanation for these facts.) conclude that the Respondent has treated A less favourably on racial

grounds the burden of proof moves to the Respondents.

b) The Respondent needs to prove on the ‘balance of probabilities’ that race was not the reason for the

treatment in question.

3) Apprentices Fall Within Act
--------------------------------------------

A Modern Apprentice is not an 'apprentice' in the traditional sense, so as to fall within the definition of 'employee'

in the Employment Rights Act 1996(which, at s203, defines 'employee' as including anybody working under a

contract of service or apprenticeship). The traditional apprenticeship involved a fixed period of training, where

the apprentice would supply labour and the master would supply training.

However, the 'modern apprenticeship' system (where an individual works for an employer, but is sent out to a

college or other training provider for part of the working week to be trained) qualifies as a normal contract of

employment and therefore the apprentice obtains employment protection through that route.

In Brown v London Borough of Croydon, the EAT has reaffirmed that it is not necessary for tribunals to adopt the traditional two-stage approach when considering discrimination claims.
> Traditionally, tribunals have been expected to consider the separate questions of (1) was there less favourable treatment of the Claimant? and, if yes, (2) what is the reason why the Claimant was treated less favourably? Notwithstanding Shamoon, in Igen v Wong the two-stage test was reaffirmed. Now, the EAT has restated that it is not compulsory to adhere rigidly to the two-stage test, and that in an appropriate case the traditional sequential analysis is not necessary.

Unfair Dismissal: Upper Qualifying Age

--------------------------------------------------------

The Employment Appeal Tribunal has handed down a judgment restating the law on the 'normal retirement age'

and in the process dashing the hopes of some BA employees to claim age discrimination by the route of sex discrimination.

In Cross & ors. v British Airways, the EAT (Burton P. presiding) held:

the existing law on 'normal' (contrasted with 'contractual') retirement ages was correct;

the fact that some employees TUPE transferred to BA from British Caledonian (which had a different retirement

age) some 17 years before could not impugn the tribunal's conclusion that the normal retirement age for BA

staff had, in effect, harmonised;

The technique of looking at several different 'pools', to decide if the retirement policy had disparate impact on

one gender, was deemed the correct approach;

The EAT added that the employer cannot rely solely on questions of cost, but can put cost into the balance (along

with such other justifications as may exist).

Cross (& ors.) v British Airways

---------------------------------------------

5) Compromise Agreements - Warning to Slack Drafters
---------------------------------------------------------------------------------

The Court of Appeal has overturned the EAT's decision in Hinton v University of East London, holding that

it is necessary for a compromise agreement to expressly specify the cause of action being settled in

order to be effective.

Mr Hinton had raised (amongst other things) a claim under s47B of the Employment Rights Act 1996,

claiming he was subjected to a detriment for making a protected disclosure.

He entered into a compromise agreement. The agreement started with a recital stating that he was

agreeing to compromise all his claims. It then went on to list various causes of action but, probably

through error in the drafting, did not refer expressly to a s47B claim.

The employment tribunal held that his s47B claim had not been compromised under a valid compromise

agreement, so he could bring his claim. The EAT disagreed, holding that the recital at the beginning

covered all claims, and the list was simply illustrative rather than exhaustive.

The Court of Appeal reinstated the ET's decision. Mummery LJ (giving the leading judgment) stated that

a compromise agreement must specify the particular statutory claim being compromised or - at the

very least - the factual basis of the claim (para. 22). A general 'catch-all' recital was insufficient as it did

not make it clear what the "particular proceedings" (the wording from s203) being compromised were.

Hinton v University of East London 22 April 2005 EAT

-----------------------------------------------------------------------------

6) Workers on Sick Leave Not Entitled to Holiday Pay

-----------------------------------------------------------------------------

The Court of Appeal, in Commissioners of Inland Revenue v Ainsworth and ors, has held that the EAT

was wrong to find that workers who had exhausted their entitlement to contractual and statutory sick

pay could claim holiday pay, notwithstanding that they were still absent from work.

The Court overturned two controversial EAT rulings, clarifying certain aspects of working time law.

Regulation 13 of the Working Time Regulations 1998 provides that workers are entitled to four weeks'

paid annual leave. The claimants in these cases were all absent from work on long-term sick leave.

They brought tribunal claims seeking to establish that their entitlement to paid holiday under the

Regulations endured even while they were not attending work. They based their claims on the EAT's

earlier judgment in Kigass Aero Components Ltd v Brown. There, the EAT held that even though the

right to paid leave under the Regulations attached to 'workers', 'that [did] not appear to import any

requirement that in order to be a "worker" some work needs to have been done or that

some attendance to do work should have occurred, either within any particular period or at all'. The

EAT in this case considered itself bound by the Kigass decision, and found for the employees.

Overturning the EAT's decision, the Court of Appeal criticised the approach taken in Kigass. That

decision was reasoned principally on the EAT's definition of the word 'worker' in the Regulations. A

preferable approach would have been to look at the natural meaning of the word 'leave'. The Court

agreed with the Inland Revenue's argument that 'leave' connotes a release from what would otherwise

be an obligation - it would be contrary to all ordinary usage for a worker who is off work for a year or

more as a result of serious illness to say that during some arbitrarily chosen part of that period he is

taking 'leave'. Further, the Regulations are intended to ensure minimum health and safety standards

in relation to working time, so that workers can expect a minimum period of release from the

pressures of work. An interpretation along the lines proposed by the claimants would do nothing

to further the interests of health and safety - the only result would be a windfall for the claimant.

The Court also overturned the EAT's decision in List Design v Douglas. There, the employees were

able to claim that non-payment of holiday pay amounted to an unlawful deduction from wages under

the Employment Rights Act 1996. S.23(1) of that Act allows claims to be brought within three months

of the last in a series of deductions. Bringing a claim under this section effectively allowed the claimants

to circumvent the operation of Reg 30 of the Working Time Regulations, which states that claims must

be brought within three months of the initial breach of the right to annual leave. The Court in this case

found that the Regulations were plainly intended to provide a single and exclusive regime for the

enforcement of the new statutory rights to annual leave. This was plainly so as, when Parliament

passed the Employment Rights Act 1996, the Regulations had not been made. List Design was

therefore wrongly decided, and the Inland Revenue's appeal on this issue should succeed.

Click here for the full text of this judgment: http://www.bailii.org/ew/cases/EWCA/Civ/2005/441.html

7) Equal Pay - Injury to Feelings

-----------------------------------------------

The EAT has handed down judgment holding that damages for non-pecuniary loss (i.e. injury to feelings,

aggravated damages etc.) cannot be recovered in Equal Pay Act claims, unlike in Discrimination Act

Definition of s43B (1)(b) - Parkins v Sodexho Ltd [2002] IRLR 109 EAT. -----------------------------------------------------------------------------------------------------------

Sub-s (1): In the Reasonable Belief of the Worker

External Disclosures

Contractual Duties of Confidentiality