Failure to explore Victimisation
EAT VICTIMISATION DISCRIMINATION
Victimisation – section 27 Equality Act 2010
The Claimants were switchboard operators who had earlier pursued ET proceedings complaining of race discrimination in which they had made various criticisms of their managers. Although the ET had dismissed those claims, it was not suggested they were pursued in bad faith and the earlier ET proceedings were accepted to constitute a protected act. Subsequently, on seeking to return to their roles (the Claimants had each been on long-term sick leave), the Claimants were told they would be redeployed into alternative positions, the relevant manager accepting the positions of the two lower level managers criticised in the ET proceedings and failing to explore the possibility of mediation. The Claimants lodged a grievance and the two lower level managers were asked to provide statements in response, the content of those statements being informed by the managers’ view of the allegations made against them in the earlier ET proceedings. Throughout the discussions concerning redeployment and the grievance process, the Claimants had understood that a fellow worker had been dismissed, which – given that their difficulties with that other worker had formed part of the basis for the first ET proceedings – made it easier for them to return. In fact the worker in question had successfully appealed her dismissal and had been reinstated into a different role, albeit she had not actually returned to the workplace at the time when the Claimants finally learned of her reinstatement. The Claimants complained that these three issues – (i) the redeployment decision; (ii) the content of the managers’ statements in the grievance process; and (iii) the failure to inform them of the other worker’s reinstatement – amounted to acts of victimisation. The ET agreed. The Respondent appealed.
Held: allowing the appeal in part, on the first and third issues.
(i) The ET’s reasoning failed to demonstrate that it had specifically made a finding as to the motivation (conscious or subconscious) for the managers’ decision that the Claimants should be redeployed. Although the ET had made a number of permissible findings adverse to the Respondent’s case, which might well have justified it drawing the inference that the real reason was the protected act, it had not actually stated that this was what it had found. The operative part of the ET’s reasoning was at paragraph 5.29 but that suggested it had fallen into the error of approaching the reasoning on a composite basis (contrary to Reynolds v CLFIS (UK) Ltd [2015] ICR 1010 CA). Reading the ET’s reasoning as a whole, its findings still did not demonstrate that it had gone beyond stating that the protected act was a significant part of the causative context; it does not expressly find it was the decision taker’s reason why.
(ii) On the grievance statements issue, the answer to the appeal was that the ET had found that the lower level managers had engaged in acts of victimisation in the content of their statements: they said what they said because of the protected act. As the Respondent had accepted vicarious liability in this regard, it could not escape that liability by relying on the fact that the Claimants had not complained about the managers’ earlier protestations: the fact the Claimants failed to bring a claim in respect of an earlier similar detriment did not mean they could not do so in respect of a repetition of that detriment in a different form at a later stage.
(iii) As for the failure to provide information about the reinstatement of the co-worker, the ET had failed to adequately explain its conclusion on detriment, in particular as to whether it had distinguished between two possibilities: (1) that the detriment arose from the possibility of coming across the other worker (in which case, the ET would have needed to deal with the factual issue that the worker had not actually returned to the workplace); and (2) that it in fact arose from the loss of trust and confidence once the Claimants learned of the failure to tell them of the reinstatement (in which case the ET needed to address the timing when the detriment actually arose, in particular in the light of its finding as to when the victimisation ceased in this regard). The ET had further failed to adequately set out its reasoning on the ‘reason why’ question. Whilst it might have permissibly determined the issue on the application of the shifting burden of proof, it had not explained which primary findings of fact had led it to conclude the burden had shifted.
The matter would be remitted to the same ET for reconsideration of the two points on which the appeal had been allowed.
Eady QC HHJ
[2017] UKEAT 0344 – 16 – 1708
Bailii
Equality Act 2010 27
England and Wales
Employment, Discrimination
Updated: 31 October 2021; Ref: scu.595006