In claims of sex discrimination, once the woman has shown that her treatment was, on the face of it discriminatory, it is then up to the employer to prove that there was some other reason for it.
In Cunningham v Quedos Ltd and John Wyeth & Brother Ltd, the employment appeal tribunal (EAT) has said that even if the evidence seems neutral, the burden of proof still passes to employers to prove that they did not discriminate.
What were the basic facts?
Wyeth, a drugs manufacturer, had a contract with Quedos to promote its products. Ms Cunningham was a sales representative with Quedos, and put her name forward to work on a contract for Wyeth.
She was told on 13 December that she would be interviewed, but after telling her employer on 19 December that she was pregnant, she was then informed in early January that her application would not be taken any further. After protesting about the decision, she was offered an interview by Wyeth on the day that she was dismissed by Quedos. She was not successful at her interview.
Ms Cunningham brought a number of complaints against both companies, some of which were subsequently settled. The remaining issue for the tribunal to decide was her claim of sex discrimination against Wyeth.
What did the tribunal decide?
After some debate about the nature of her claim, Ms Cunningham alleged that Wyeth had discriminated against her by not appointing her to the job because she was pregnant.
However, as Wyeth was not her employer, she had to rely on section 42 of the Sex Discrimination Act which refers to 'aiding unlawful acts.' She claimed that the company had knowingly assisted Quedos to commit an unlawful act by instructing Quedos not to continue to employ her.
The tribunal referred to the approach approved by the House of Lords in Glasgow City Council v Zafar - that it can infer discrimination if the employer cannot adequately explain why one employee has been treated differently to another. In this case, however, the tribunal decided there had been no difference in treatment and that it did not therefore need to draw an inference of discrimination.
What did the EAT decide?
Ms Cunningham appealed on the basis that the tribunal had not directed itself properly about the issue of the burden of proof, and that it had not made a finding on the principal basis of her claim. That is, that Wyeth had knowingly assisted Quedos to commit an unlawful act.
The EAT upheld her claim in respect of the burden of proof, but dismissed her complaint about the lack of a finding. This was because she had relied on two grounds to support her claim of sex discrimination - the first that she was not appointed because Wyeth knew she was pregnant; and secondly that the interview was a sham.
Both related to the conduct of the interview, not that there had been collusion between Wyeth and Quedos. The tribunal was right to concentrate on the interview as that was the essence of her complaint. It could not make a finding about issues that were not put before it.
However, the EAT did agree that the tribunal had not directed itself properly on the proper approach to the burden of proof. It agreed that, once Ms Cunningham had proven she had been treated less favourably, the burden then passed to Wyeth to prove that the reason for that treatment was nothing to do with her pregnancy.
She maintained it would not have been able to do that, pointing to the change of mind about interviewing her and the timing of all the events.