Smith v Ideal Shopping Direct Ltd: EAT 16 May 2013

EAT Sexual Orientation Discrimination/Transexualism – Claimant (C) succeeded at the Employment Tribunal (ET) on a claim that he had been victimised (by his dismissal) for raising concerns about homophobic treatment at the workplace. However, the ET additionally decided that (1) he would have been dismissed 4 days later in any event and (2) his claims in respect of harassment by remarks directed to his sexual orientation (a gay man) were not made out.
Claimant’s appeal on both aspects allowed:
(1) The ET had failed to explain why it had decided that it was inevitable that C would have been dismissed 4 days later. That was the scheduled date of a disciplinary hearing. The notice for that hearing warned that it could lead to dismissal. There had been no earlier written warnings. The history of earlier responses to concerns about C’s employment had been to move him to other posts at higher salaries. The ET failed to explain, in the light of that history, why dismissal was inevitable as opposed to being a possibility.
(2) The ET failed to grasp and address the actual evidence on two harassment complaints and its Judgment muddled the facts as to them. It also failed to apply the correct approach required by the regulations.

Luba QC
[2013] UKEAT 0590 – 12 – 1605
England and Wales


Updated: 18 November 2021; Ref: scu.514346