Hammond LLP and ors v Mwitta
In a discrimination claim, the burden of proof passes to the employer if the claimant can show that, on the face of it, there is a case to answer. In Hammond LLP and ors v Mwitta, the Employment Appeal Tribunal (EAT) said that showing that an employer “could have” discriminated against the claimant was not enough to shift the burden.
Basic facts
Ms Mwitta started work as a newly qualified lawyer in the corporate strategy and finance department at Hammonds in September 2006. She was the only non-white member of staff.
Work was allocated by one of the five partners using a number of criteria. These included - involvement in obtaining the work; an existing relationship with the client; experience and seniority; and “serendipity” in the sense that a particular fee-earner was available to do a job.
During the spring and summer of 2008 it became apparent that the economic downturn was having an effect on the company and the amount of work available. Ms Mwitta along with a number of other employees were subsequently made redundant. Initially the termination date was set for 15 December, but although the company did not get her agreement, it brought forward the date to 1 December.
Ms Mwitta complained that, prior to being made redundant, she was allocated less work than her comparators by the partners because of her race. She also claimed unfair dismissal.
Tribunal decision
The tribunal agreed that the “very great disparity” between the hours worked by Ms Mwitta and those worked by her comparators showed “a pattern of marginalisation”. That meant the partners “could have” discriminated against her.
It concluded that, on the face of it, she had shown there was a case to answer and the burden of proof therefore shifted to the partners to explain why they acted as they did. It said that they failed to discharge that burden and concluded that Ms Mwitta’s claim of race discrimination should succeed.
As for her claim of unfair dismissal, the tribunal said that the company had followed the correct redundancy procedure. However, it had fallen foul of the consultation obligations under section 188 of the Trade Union and Labour Relations Consolidation Act when it brought forward the date of termination of her employment and had therefore acted unreasonably. This resulted in the dismissal being unfair.
EAT decision
The EAT, however, disagreed and criticised the tribunal for making a number of “significant errors” in its reasoning.
Relying on Madarassy v Nomura International plc, it said that just because the firm "could have" committed an act of discrimination was not enough to establish a prima facie case which then shifted the burden of proof from Ms Mwitta onto the company.
Although the tribunal had found as a matter of fact that work allocated to Ms Mwitta had shown a pattern of marginalisation, it had not found facts from which to conclude that she actually had been discriminated against on the grounds of her race. It therefore remitted the claim to be heard by a different tribunal.
It also said, in relation to the unfair dismissal claim, that the tribunal was wrong to hold that an employer who dismisses an employee within a protected period for consultation “necessarily acts unreasonably”. The EAT therefore upheld the company’s appeal on this ground as well.