PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
VICTIMISATION DISCRIMINATION – Detriment
The Claimant before the ET worked for the Respondent for 33 years until she was made redundant in the context of a restructuring in 2012. She subsequently pursued Employment Tribunal claims, including of age and sex discrimination, unsuccessfully.
In 2017 the Respondent advertised two posts of Assistant Curator. The Claimant applied. Her application was sifted out for the given reason that she was overqualified. The Respondent also advertised a post of Curatorial Project Manager. The Claimant was not among those shortlisted. In two claims, one relating to each application, she claimed victimisation by reference to her 2012 ET claims. In both cases the ET found that the burden shifted to the Respondent, but, in relation to the Assistant Curator posts, was not discharged, so the first claim succeeded. The other claim failed. This appeal related to the successful first claim only.
Held:
(1) Very unfortunately, on two occasions on day one of the hearing, the Employment Judge fell asleep. In all the circumstances, a fair-minded informed observer would conclude that there was a real possibility that the fairness of the hearing was affected. The appeal therefore succeeded on this ground alone. Stansbury v Datapulse plc [2004] ICR 523 (CA) applied. Shodeke v Hill and Others [2004] UKEAT/0394/00 considered.
(2) The appeal would not have been upheld by reference to the grounds of appeal challenging the ET’s decision that the burden of proof passed to the Respondent. Although the specific matters relied upon by the ET as shifting the burden were too narrow, the wider undisputed facts were such as to justify that decision.
(3) The appeal would, in any event, have been allowed, on the basis that the ET did not reach a sufficiently clear and specific conclusion in respect of the Respondent’s case as to the explanation for the decision to sift out the application, being that the Claimant was regarded as significantly overqualified for the position.
Citations:
[2019] UKEAT 0260 – 18 – 0404
Links:
Jurisdiction:
England and Wales
Employment
Updated: 10 July 2022; Ref: scu.638494