The recent Employment Appeal Tribunal (EAT) case of Marriott Motor Group & Others v Cottington has brought into focus an interesting point of court proceedings that many may be unaware of.

Ms Cottington was business manager for Marriott. After a meeting in which her performance was criticised, she was dismissed by the company: as she had been there less than 12 months, Marriott did not feel it necessary to follow the usual dismissal procedures.

However, Ms Cottington subsequently claimed sex discrimination and alleged various acts of domineering behaviour and workplace bullying. An Employment Tribunal found in her favour, and Marriott later appealed.

In considering the original tribunal’s reasoning, the EAT identified a number of points that the tribunal had apparently used to draw inferences that Marriott had treated Ms Cottington less favourably than her male co-workers.

Hence, in the eyes of the tribunal, the burden of proof then fell to Marriott to defend itself against the sex discrimination allegations by providing a credible alternative explanation for its actions.

However, the EAT found that the tribunal had failed to explain the reasoning it had used to draw these inferences, and had also failed to identify a suitable hypothetical comparator in the case, i.e. a man doing Ms Cottington’s job who would not have been treated in the same way that she had been.

The tribunal found that Marriot had not settled the burden of proof satisfactorily, but again they had not given their reasoning for this.

The EAT considered these to be fundamental flaws in the tribunal’s approach to the case, so the appeal was allowed and the case was remitted to a new tribunal.

Interestingly, Marriott had also appealed against a costs order, which had been imposed because a day had allegedly been wasted during the hearing due to the absence of a witness.

Although Marriott had served a statement for the witness, in the end they had decided not to call the witness but had not informed the other party of this decision. The costs order was imposed based on the time that was subsequently lost during a trial as a result of this omission.

The EAT found that this judgement had also been in error, finding that: “there cannot be any general rule of law or procedure which requires a party to inform the other party of which witnesses it intends to call from amongst those it has served or exchanged witness statements for.

“While it may be a matter of professional courtesy and it is, of course, a practice to be encouraged, it is not a binding rule of law.”

This appeal was therefore also allowed, and the costs order was overturned.

Technorati Tags: dismissal procedures, Employment Law, Employment Tribunal, Sex Discrimination