Background

The Claimant, a non-Catholic, was employed by the Diocese as Head of Finance and was considered an exemplary employee.

She took adoption leave after adopting a child. On her return to work, she asked to return three days a week to allow her to accommodate her childcare needs. Her line manager, Mrs Murray, refused to consider the request or any further alternatives such as homeworking as she did not believe the Claimant’s role could be done part-time. The Claimant then put in a flexible working request.

After this, Mrs Murray began raising concerns regarding the Claimant’s performance and alleged that she had been grossly negligent in her accounting. The concerns were then escalated into allegations of gross misconduct. The Claimant was suspended, subjected to disciplinary proceedings, and ultimately dismissed for gross misconduct.

During the disciplinary process, the Claimant raised a grievance in which she stated that the Catholic Church did not have a “blemish-free history when it comes to adopted children or children in care”.

She brought claims against the Trust of:

• Unfair dismissal;
• Wrongful dismissal;
• Discrimination because of religion or belief; and
• Harassment.

Her lack of Catholic Christian religion or belief was accepted as a protected characteristic.

The Employment Tribunal found the dismissal to be both unfair and wrongful as “no reasonable employer could have regarded them as constituting ‘serious negligence’ so as to amount to gross misconduct”. The Tribunal also found that the Claimant had suffered discrimination because of religion or belief due to her status as a non-Catholic and harassment due to having her mental health mocked during the disciplinary hearing by an external auditor hired to handle the situation.

The Diocese appealed the findings of discrimination and harassment.

Appeal decision

The EAT allowed the Diocese’s appeal against the findings of direct religion or belief discrimination and harassment. They found that the Tribunal had misapplied the burden of proof test under section 136 of the Equality Act 2010 (EqA 2010).

The burden of proof provisions provide that if there are facts from which the tribunal could decide, in the absence of any other explanations, that the provision concerned had been contravened, the tribunal must hold that the contravention occurred (unless it can be shown that the provision was not contravened).

Barton v Investec Henderson Crosthwaite Securities Ltd [2003] summarised that a two-stage approach to the burden of proof applies:

1. Can the Claimant show a prima facie case? If no, the claim fails. If yes, the burden shifts to the Respondent to explain its position; and
2. Is the Respondent’s explanation sufficient to show that it did not discriminate?

In this case, HHJ Tayler set out five common-sense questions which tribunals should apply when considering whether direct discrimination can be inferred:

1. What is the act(s) of alleged discrimination done to the Claimant? Acts may be analysed together where it would be appropriate to do so if the acts were allegedly committed by the same person or are similar in nature and their timing.
2. Who is the alleged discriminator?
3. Did the alleged discriminator do the act to the Claimant?
4. Are there facts from which the tribunal could decide in the absence of any other explanation that the alleged discriminator did the act to the Claimant because of the relevant protected characteristic?
5. If, on a logical analysis, there are facts from which the tribunal could decide, in the absence of any other explanation, that the alleged discriminator did the act to the Claimant because of the relevant protected characteristic, then the inference of discrimination must be drawn unless the alleged discriminator shows that they did not do the acts to the Claimant because of the relevant protected characteristic.

Treatment may be deeply unfair or unreasonable but that does not in itself justify an inference of discrimination.

It was found that the Tribunal had adopted a blanket approach to the first stage of the test as many of the facts they relied on to shift the burden of proof related to Mrs Murray’s actions. There was a lack of explanation of parts of its position/findings as well.

It was also noted that the Tribunal had found that there was a non-discriminatory reason for the concerns being escalated to a disciplinary process (e.g. Mrs Murray’s allegations of gross negligence following the Claimant’s flexible working request) but had failed to consider that this could be the reason for the conduct towards the Claimant. The Tribunal had incorrectly applied a ‘reasonable and coherent’ explanation test rather than questioning whether the explanation could be non-discriminatory.

Why is the case important?

This case is significant as it reaffirms the approach to the burden of proof and identifies the relevant questions to be considered when determining whether direct discrimination can be inferred. HHJ Tayler’s findings warn employment tribunals that applying the burden of proof provisions should not prevent them from analysing complaints of discrimination in a logical, well-reasoned manner. Case law guidance should be utilised, but tribunals must engage with the specific requirements of the EqA 2010 first when considering inferences of discrimination.



It also evidences how employers should not be handling an investigation and disciplinary process. The process portrayed was hurried, pre-judged, poorly reasoned and procedurally unfair. The rapid escalation of initial performance concerns, relating to a stellar employee with a previously unblemished record, into gross misconduct allegations highlighted the unfairness of the process. To assist with reducing the risk of claims, employers should carefully consider the particular circumstances and what approach and sanction to adopt. Further, if in doubt, seek appropriate legal advice to assist with enacting fair and legally compliant processes.