Tribunals can infer that an employer has discriminated against an employee by comparing the claimant’s treatment with that of other employees. In Hewage v Grampian Health Board (Scotland), the Supreme Court said that even if the situations between the two were not exactly the same, a tribunal can still infer that there has been discrimination which the employer then has to try to rebut.

Basic facts

Mrs Hewage, who was born in Sri Lanka, started work with Grampian Health Board in 1993 as a consultant orthodontist, becoming Head of Service for the orthodontic department in 1996.

She complained in September 2003 that she was being bullied by two colleagues at monthly management department meetings and, not satisfied with her employer’s response, resigned her position as head of department in November 2003.

Following her resignation, two nurses agreed to a proposal by her replacement, Mr Larmour, about having a consultant on a nurses’ interview board which they had fiercely resisted when proposed by Mrs Hewage. Mr Larmour was also assured he had his managers’ full support and told to contact them if he had any problems.

Another colleague, Professor Forrester, had also resigned because of the conduct of one of the managers in the past. As a result, the opthamology department had been reorganised, the manager removed from her post and the professor reinstated.

In December 2004 Mrs Hewage resigned from her employment with the Board with effect from 31 March 2005, following a report into her complaints which she said was full of inaccuracies.

In September 2005 she lodged tribunal claims for unfair dismissal, race and sex discrimination arguing that other white, male consultants were not subject to the same bullying and harassment.

Two-stage test

The law requires a two-stage test to prove discrimination. Firstly, the claimant has to prove facts from which the tribunal could conclude that the employer discriminated against them. Secondly, if the employer cannot provide a satisfactory explanation for those facts, they are required to prove that they didn’t discriminate against the claimant.

Decisions of lower courts

At the tribunal hearing, the Board conceded that Mrs Hewage had been constructively and unfairly dismissed. Having considered the treatment of Professor Forrester, the change of attitude about having a consultant on the interview panel and its treatment of Mr Larmour, the tribunal found that the Board had also discriminated against her on grounds of both sex and race.

However, the EAT overturned the tribunal’s decision, saying that Mrs Hewage had not established facts from which the tribunal could properly infer that she had been the victim of discrimination and had closed its mind to evidence that Professor Forrester and Mr Larmour were not appropriate like for like comparators.

The Court of Session (the Scottish Court of Appeal) then allowed her appeal, saying that the tribunal was entitled to conclude, in the absence of an adequate explanation, that the Board had committed an act of discrimination in that it had treated her differently from her two comparators, who were appropriate.

Supreme Court decision

The Supreme Court dismissed the Board’s appeal, holding that the tribunal was entitled to hold that Professor Forrester and Mr Larmour were appropriate comparators, even though the situations were not exactly the same. This was a question of fact and degree, and there was enough evidence in this case to indicate that they were.

The tribunal had adopted the correct approach when considering whether the situations of Professor Forrester and Mr Larmour were like for like comparisons.

Having done that and having found that was no adequate explanation for the difference of treatment, the tribunal was entitled to draw a prima facie inference of sex and race discrimination in Mrs Hewage’s favour. It was then for the Board to rebut that inference, which it failed to do.