If an employee wants to claim unlawful discrimination, is it ever sufficient for him or her simply to say ‘I was black/female/disabled and I was treated less favourably?’ or is there more that has to be shown before the employer has to justify its actions? The law (which changed in October 2001) refers to a two-stage process where the claimant must first ‘prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination’. Once this hurdle has been overcome, the tribunal must uphold the complaint unless the employer can prove that it did not commit the act.

In the 2005 case of Igen v Wong, the Court of Appeal gave detailed guidelines on how the two-stage process should be undertaken.

The Court of Appeal has recently reviewed the Igen v Wong guidelines in Madarassy v Nomura (also Brown v Croydon and Appiah v Bishop Douglas)

The claimant argued that all she should have to prove was two fundamental facts – difference of status (she was a woman who became pregnant and went on maternity leave) and difference in treatment (shortly after her return from maternity leave she was selected for redundancy). It was then for her employer to justify its action.

The Court of Appeal disagreed. She had to show more than a mere possibility that there had been discrimination before the employer had to explain itself to the tribunal.

Also, the employer was entitled to get involved in the first stage of the two-part process in order to complete the factual background. The fact that the manager who was the alleged discriminator treated all subordinate employees in the same (bad) way was relevant. She had not been treated worse than anyone else and so her claim failed at the first stage.

The claimant argued that there was no-one that she could compare herself with in order to show that she had been treated less favourably and it was wrong for the tribunal to consider a hypothetical (ie not pregnant) comparator. The Court of Appeal said that, in such a case, the Igen v Wong guidelines were flexible enough to allow a tribunal to either (as in this case) consider how a hypothetical comparator would have been treated or to move straight to the second stage of the two-stage process and ask the employer to explain the difference on treatment. In this case, the tribunal had been satisfied that a hypothetical comparator would have been treated in exactly the same way. However, if the facts warranted it – for instance if there were only two recruitment candidates, one white and one black, and the white candidate got the job – the tribunal could then go straight to stage two and ask the employer why. This was what had happened in the leading case of Shamoon. The claimant was the only woman chief superintendent in the Northern Ireland police force to be relieved of counselling duties. The tribunal asked the employer why and the employer explained that she was the only one against whom two complaints had been made in respect of her counselling duties. Her claim failed.

Points to note –

# At the first stage it is not only the claimant’s evidence that is relevant. The two- stage process does not mean tribunal cannot hear all the factual evidence first. At stage one, the employer may show that the alleged discrimination did not happen at all; that the claimant was not treated differently; or that a wrong comparator being used.

# In some cases, tribunals may go straight to ‘stage two’ and ask the employer to justify its actions. In theory this should make it easier for some claimants to establish their discrimination claims.

# However, there may still be procedural difficulties in deciding at what point the employer’s evidence should be heard – as part of the factual background to its treatment of the employee at the first stage? or only at the second stage when the employer is explaining why it treated the employee in that way? All discrimination claims require expert handling in the employment tribunal.