Back to top
News In Focus

Supreme Court refuses health board discrimination appeal

25 July 2012

An employment tribunal had been entitled to draw a prima facie inference of race and sex discrimination against a Sri Lankan-born manager with Grampian Health Board, the UK Supreme Court ruled today.

Five justices unanimously dismissed the Board's appeal against the decision of the Second Division to allow an appeal by Mrs Sumithra Hewage from the EAT, which had reversed the tribunal's decision.

Mrs Hewage had been head of service for the Orthodontic Department at Aberdeen Royal Infirmary. Before the employment tribunal the Board conceded that she had been constructively and unfairly dismissed, but contested her allegations of race and sex discrimination in relation to her treatment by other managers at management meetings, and the Board's response when she complained. She alleged that her complaints had not been taken seriously, but another head of service was listened to when he raised similar matters and a proposal by her own successor was accepted although it had been fiercely resisted when made by her.

Lord Hope, with whom the other justices agreed, said that the employment tribunal was entitled to hold on the evidence that the two other managers were appropriate comparators. The tribunal had also correctly applied the two-stage test under which the complainant had to prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent had committed an act of discrimination that was unlawful, after which the burden of proof shifted to the respondent to rebut the prima facie inference.

Having found that a difference of treatment had been proved for which, in its judgment, there appeared to be no adequate explanation, the tribunal was entitled in these circumstances to draw a prima facie inference of sex and race discrimination in Mrs Hewage’s favour, which it was for the Board to rebut and it had failed to do so.

The Inner House had remitted the case to the tribunal with guidance as to which points it should consider in deciding whether to affirm its finding of discrimination. That had now been dealt with, but it had not been necessary, as argued for the Board, for the question to be remitted to a differently constituted tribunal. There was an obvious advantage in remitting the matter to the original tribunal as it had already heard and been able to assess the evidence.

Have your say