Cousins v The Forum@Greenwich: EAT 1 Feb 2016

EAT Sex Discrimination: Direct – SEX DISCRIMINATION – Burden of proof
Direct discrimination – sex and race – victimisation
The Claimant (a black woman) had been dismissed from her employment as General Manager of the Respondent. The ET had accepted that the Respondent’s Chair of Trustees had a poor relationship with the Claimant, had made an inappropriate comment to her that amounted to less favourable treatment but was not, itself, the subject of a stand-alone complaint to the ET, and it had been recommended that he attend equality and diversity training to update his knowledge of working in a multicultural environment. He had further produced a report recommending that the Claimant be dismissed at the end of her probation period, the fairness and balance of which was – as the ET found – open to doubt.
All that said, the ET’s findings of fact also referenced concerns being expressed regarding the Claimant’s performance by other members of the Board and the ET concluded that the views of another Trustee had won the day, when the Respondent decided to extend the Claimant’s probation period rather than dismiss her (as the Chair had wanted). The ET further concluded that the individual Trustees who had ultimately determined to dismiss the Claimant and, subsequently, to reject her appeal against dismissal, had reached their own views independently of the former Chair and their decisions were not tainted by any discriminatory conduct/intent on his part. Equally, the decisions were not acts of victimisation.
On the Claimant’s appeal:
Held: dismissing the appeal.
Reading the ET’s reasoning as a whole, it was apparent that the ET had found that the Chair’s views had not tainted the decision to extend the Claimant’s probation period. Members of the Board had concerns about the Claimant’s performance independent of the Chair’s report and were persuaded to adopt the course favoured by another Trustee, to extend the Claimant’s probation rather than terminate her employment. In so doing, it did not lose sight of its findings adverse to the Chair but had formed a permissible conclusion as to what had really informed the decision in issue.
And that was ultimately the answer to the Claimant’s other grounds of appeal. The decisions to dismiss and to then reject the Claimant’s appeal were equally not influenced by the views of the former Chair but were taken independent and for reasons the ET concluded were other than the Claimant’s sex or race.
The ET had also reached a permissible conclusion on the victimisation claim. Whilst the reasoning might have been more fully explained, it was apparent that it had concluded that the action taken against the Claimant (the detriments she suffered) were not because of the protected act (the Claimant’s grievance).

[2016] UKEAT 0183 – 15 – 0102
England and Wales

Employment, Discrimination

Updated: 14 January 2022; Ref: scu.562531