Council’s appeal is successful as there was a lack of specificity in terms of why a hypothetical female comparator would have been treated more favourably and that there must be an ‘intense forensic exercise’ in establishing the finding of facts.

The dispute revolves around the post of Corporate Planning Manager (‘CPM’). The claimant was on a fixed term contract as Community Renewal Manager; this was renewed and subsequently made permanent. The claimant was offered and accepted the CPM role on a fixed term basis.  Another CPM role was vacated.  That role was permanent. The role was not advertised and was not offered to the claimant. The contract was extended on 7 occasions until expiry in June 2022. The claimant internally appealed but this was unsuccessful and led to Tribunal proceedings being initiated.

There had been restructuring in which another Tier 4 Manager in the Department had retained their role (a female) but the claimant did not.  The claimant contended that it was a deliberate move so that she would be eligible for the role.

The basis of the claim was that female employees had been matched to the new roles and that it had let to the claimant’s fixed term contract being terminated without being able to remain in the managerial position.

At first instance, the Tribunal found the respondent’s evidence incohesive and confusing. It further found that a hypothetical female comparator would, on balance, have been more favourable treated than the claimant.  The respondent appealed stating the Tribunal erred in law as the claimant had not established a prima facie case, the Tribunal failed to attribute weight to the comparators appropriately and in an alternative even if the burden did shift to the respondent the Tribunal erred in failing to have regard to the evidence indicating a non-discriminatory reason (that it was a fixed term contract).

McCloskey LJ referred to Lord Nicholls in Shamoon when he said ‘…the less favourable treatment issue is incapable of being decided without deciding the reason why issue.  And the decision on the reason why issue will also provide the answer to the less favourable treatment issue.’

In allowing the appeal, it was held that the first frailty is that the findings of fact was a recitation of evidence.  An ‘intense forensic exercise’ is required in order to establish a correlation, an exercise which confirms that some of the particulars were not the subject of any corresponding findings of fact. There had been a lack of specificity in terms of the respondent’s evidence being ‘confusing’.  The idea that the hypothetical female comparator would be treated more favourably was ‘purely conclusionary’ and required elucidation – i.e. in what respects?

There were two non-discriminatory reasons for the Council’s offending conduct, the contractual situation and the restructuring exercise.  It was incumbent upon the Tribunal to engage with those two reasons as they were of central importance to the inter-related questions of whether the burden transferred to the respondent.  Accordingly, the appeal was allowed and remitted to a differently constituted Tribunal for fresh consideration.

The decision of the Court of Appeal reiterates the test to be applied when looking at less favourable treatment and ensuring that the ‘why question’ is asked and answered by the Tribunal.   This decision, perhaps, provides more for the Industrial Tribunal in terms of its processes with it being made clear that the finding of facts must go beyond reciting the evidence and that it must be an ‘intense forensic exercise’.   This would allow for weigh to be attached and for the matters of less favourable treatment to be properly explored.

You can read the case in full here.