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Riley v. Nick Base (t/a GL1 Heating)


Employment Appeal Tribunal

The tribunal failed to apply the two-stage process as laid down in the Sex Discrimination Act 1975 s.63A in seeking to determine whether an employee's allegations against his employer amounted to sex discrimination. When the correct test was applied to the evidence before the tribunal it was clear that the employee had made out his case of sex discrimination.

The appellant employee (R) appealed against the part of a decision of the employment tribunal dismissing his claim of unlawful sex discrimination against the respondent employer (H). R alleged that he had been physically and verbally abused during the course of his apprenticeship with H. H denied the bulk of the allegations, but admitted giving R a clip around the ear and verbally insulting him on one occasion. R claimed that H would not have treated a female apprentice in the same way. H admitted that he would not treat a woman as R alleged he had been treated. His case remained however that he did not treat R as alleged in any event save for the clip around the ear which he said he would have delivered to any apprentice, male or female, in the particular circumstances. The tribunal considered the matter on the basis of a hypothetical female apprentice in similar circumstances and held that R had to show a prima facie case that the treatment was on the grounds of R's sex. The tribunal found that H had mistreated R not because he was a man but rather because of H's bad temper and lack of self-control.

HELD: The tribunal were incorrect in requiring R to show a prima facie case that the alleged treatment was on the grounds of sex. The Sex Discrimination Act 1975 s.63(A)(2)(a), as amended and as interpreted in the case of Igen v Wong (2005) EWCA Civ 142 , (2005) 3 All ER 812 required the tribunal to go through a two-stage process if the applicant's complaint was to be upheld. The first stage required the applicant to prove primary facts which the tribunal could conclude, in the absence of adequate explanation from the respondent, amounted to an unlawful act of discrimination. The second stage shifted the burden of proof to the respondent and required him to prove that he did not commit the unlawful acts. When the evidence presented by R and H at the hearing was subjected to this two-stage process, it was clear that R did prove facts from which conclusions could be drawn that H had treated R less favourably on grounds of sex. H had then failed to present an adequate explanation for his behaviour. R therefore succeeded at both stages of the Igen analysis.
Appeal allowed.
For the appellant: Garreth Wong
For the respondent: Rebecca Tuck
For the appellant: Gloucester Law Centre (Gloucester)
For the respondent: Davies & Partners Solicitors (Gloucester)

LTL 2/11/2005 (Unreported elsewhere)

Document No. AC0109615

LTL 2/11/2005

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