Martin v Devonshires Solicitors

Victimisation requires the protected act to have been a whole or substantial part of the reason for the detriment. A tribunal may distinguish the making of a discrimination complaint from a feature of it, or a consequence of it, which is genuinely and properly separable and which actually caused the detriment. The distinction must be applied cautiously: ordinary unreasonable language, inaccuracies or intemperate conduct will usually be inseparable from the complaint itself. A false allegation made in good faith remains protected under the statutory exception, but that does not prevent an employer relying on the distinct risk of future disruptive conduct arising from mental illness. The statutory inquiry is not a simple but-for test. It asks whether the protected act had a significant influence on the outcome, by examining the employer’s operative reasons. The burden of proof provisions do not determine an issue resolved by positive findings of fact.

The appellant was employed as a legal secretary by the respondent solicitors. She made grievances and tribunal allegations of sex and disability discrimination, including allegations against two partners which she genuinely believed but which had not occurred and were attributable to mental illness. Medical evidence indicated a recurrent illness, a risk of relapse and lack of insight. She was dismissed after the respondent concluded that the relationship of trust and confidence had broken down, relying on the seriousness and falsity of the allegations, her inability to recognise the mistake, the risk of repetition and the resulting management difficulties.

An Employment Tribunal dismissed her victimisation and unfair-dismissal claims. It found that the dismissal was caused by those features and their consequences, not by the fact that the complaints alleged discrimination. The appeal concerned whether that distinction was legally permissible, the comparator and but-for analyses, the burden of proof, and the weight given to the evidence.

1. The appeal was dismissed. The Tribunal was entitled to find that the appellant was not dismissed because she had made protected complaints, but because of separable features and consequences: the seriousness and falsity of the allegations, her inability to accept that they were false, the resulting evidence of mental illness, the risk of recurrence and the management problems which would follow.
2. Victimisation is established where the protected act was wholly or substantially the reason for the detriment. In principle, however, an employer may rely on a feature of the complaint which is genuinely and properly separable from the making of the protected act. The obvious example is the manner in which a complaint is made. The principle also covers a combination of features or consequences of a complaint which are distinct from the complaint itself. Tribunals should be slow to accept the distinction where the employer is merely objecting to ordinary unreasonable behaviour, inaccurate statements or intemperate language.
3. Sections 4(2) of the Sex Discrimination Act 1975 and 55(4) of the Disability Discrimination Act 1995 protect a false allegation made in good faith. They prevent an employer from treating the falsity of the complaint itself as the reason for detriment by avoiding the bad-faith issue. They do not prevent reliance on a distinct perceived risk of future disruptive behaviour caused by mental illness.
4. The Tribunal correctly rejected a simple but-for test. The relevant inquiry is into the substantive or operative reasons for the act, including whether the protected act had a significant influence on the outcome. The distinction between the relevant question of what caused the treatment and the irrelevant question of motive or purpose remains important. The reasoning in Chief Constable of West Yorkshire Police v Khan was directed to a different distinction and did not govern this case.
5. The comparator exercise was not determinative once the Tribunal had made its finding on the reason for dismissal. The questions of less favourable treatment and why the treatment occurred are closely connected. The reverse burden provisions and Igen Ltd v Wong had no operative role because the Tribunal made positive findings about the decision-makers’ genuine reasons. The assessment of evidential weight disclosed no error of law.

The Tribunal’s findings also supported dismissal for an other substantial reason under section 98(1)(b) of the Employment Rights Act 1996; that conclusion was not independently challenged.

• Employment Appeal Tribunal: appeal against the Employment Tribunal’s dismissal of the victimisation and unfair-dismissal claims dismissed.
• Employment Tribunal, London Central: claims dismissed. The Tribunal found that the dismissal was for the respondent’s genuine concerns about the allegations, mental illness, recurrence and management consequences, rather than because the appellant had made protected acts.