Under the Equality Act 2010, if an employee can show facts from which a court or tribunal could decide, in the absence of any other explanation, that an employer discriminated against them (by treating them less favourably than they treated or would treat others), the burden is then on the employer to show that it did not discriminate against the employee because of a protected characteristic.

In Iwuchukwu v City Hospitals Sunderland NHS Foundation Trust, the Court of Appeal found that the Trust’s asserted non-discriminatory explanation for its treatment of the Claimant (that it refused to consider his grievances because they were seen as an attempt to derail capability proceedings) was not sufficient to discharge the burden of proof upon it and did not rule out a finding that the treatment was discriminatory.


Mr Iwuchukwu, a consultant surgeon, was the only consultant of black African ethnic origin at the Trust. Following an investigation into various concerns about his performance, including an incident in which he set a patient on fire during surgery, he was restricted to non-clinical practice. He raised a grievance asserting that his treatment was an act of race discrimination. The Trust declined to hear his grievance on the basis it had been lodged outside the time limit set out in its grievance policy. Following the commencement of capability proceedings the Claimant raised a second grievance but was dismissed following a capability hearing.

Mr Iwuchukwu brought various claims against the Trust including unfair dismissal, and race discrimination and victimisation for the failure to investigate his grievances.

The Employment Tribunal upheld his claims but its decision was overturned by the Employment Appeal Tribunal (EAT). In relation to the discrimination claim, the EAT found that the Trust’s explanation for its failure to investigate Mr Iwuchukwu’s grievances – namely that he had simply raised the grievances in order to disrupt the capability proceedings – had sufficiently discharged the burden of proof to show that no discrimination had occurred.

Mr Iwuchukwu appealed to the Court of Appeal.

Court of Appeal decision

The Court of Appeal upheld Mr Iwuchukwu’s appeal and restored the original decision of the Employment Tribunal. The Court of Appeal noted that the Trust’s explanation was unsustainable, in part because Mr Iwuchukwu raised his first grievance prior to the commencement of the capability proceedings. In its view, the Employment Tribunal had correctly applied the relevant legal test and the Trust could not show that its decision was not tainted by race discrimination.

What to take away

This case serves a reminder that, where an inference of discrimination can be drawn, it will be up to the employer to show that the discrimination did not in fact occur. Whilst there may well be cases where the employer’s explanation is untainted by discrimination, each case will turn on its own facts, and employers should proceed with caution in a potentially discriminatory situation, and not assume that an apparently non-discriminatory explanation will be sufficient to discharge the burden of proof.

For further information on how this issue might affect your organisation, please contact Siân Bond, Andrew Uttley or Chloe Edwards.