Employment Law Cases

Talbot v Costain Oil Gas & Process Ltd

When drawing inferences of discrimination, it’s the overall picture which is important.

Proving discrimination is never easy. Direct evidence will nearly always be hard to come by. For this reason, where a tribunal makes findings of fact which could give rise to an inference of discrimination, the burden of proof will shift to the employer to provide an innocent explanation for any alleged discrimination.

This case involved Ms Talbot, an engineer, who was engaged through an agency to work for Costain. At interview, she was told that Costain wanted an experienced engineer to shake things up on site and drive through project changes. It was a male-dominated environment; Ms Talbot was the only female. The work atmosphere deteriorated and she was criticised, among other things, for being too aggressive. After three months, her contract was terminated (because of ‘business HR changes’) and she was immediately escorted off site. Her subsequent tribunal claim raised 17 separate allegations of sex discrimination and/or harassment.

A tribunal dismissed her sex discrimination claim, holding that she couldn’t show that any of the incidents related to her sex. As to why her contract was terminated, the tribunal held that it was because her manager believed she wasn’t working in the way he wanted. She appealed – successfully.

The EAT said the tribunal hadn’t approached the case as it should have; both on its fact-finding role and in relation to the proper inferences to be drawn on discrimination. Ms Talbot had alleged discrimination in relation to many incidents and, for each one, the tribunal had said there wasn’t enough evidence that discrimination was the root cause. What it should have done however was to take a step back and look at the overall picture. When all the allegations are added together, is it reasonable to conclude that the reason for what is happening is discriminatory?

The evidence showed that Ms Talbot was the only female engineer in the team and that she had not been invited to key meetings, her work was loudly and openly criticised by others, and that she was accused of having an aggressive and hostile attitude towards her colleagues using language which one colleague said was not often heard ‘coming from a lady’. At one stage her manager had told her to be ‘kinder, gentler and nicer’ and had admitted that he would not have used those words if he had been addressing a man.

The case was sent back to be reheard by a different tribunal.

Link to judgment: http://www.bailii.org/uk/cases/UKEAT/2017/0283_16_1403.html

Comment

While in one sense, this is simply a case of the tribunal getting it wrong, it does hold lessons for employers. If you as the investigating or disciplining officer are faced with a female member of staff who comes to you with a raft of discrimination complaints, don’t focus too much on specific issues. Stand back and ask yourself ‘Overall does this illustrate a discriminatory attitude?’