South London Healthcare NHS Trust v Al-Rubeyi

Victimisation requires less favourable treatment because the claimant carried out a protected act. The tribunal must identify the treatment, ask whether it was less favourable, and determine whether it was caused by the protected act. Knowledge of the protected act is essential to causation. Knowledge of a grievance, without knowledge that it alleged discrimination, is insufficient. An employer may be liable where the decision-maker’s action is significantly influenced by a tainted reaction of another person, but the evidence must establish that connection. A legitimate reason arising from pre-existing workplace difficulties will defeat the claim where the protected act was not the reason for the treatment.

The claimant, a consultant paediatrician, brought claims of direct race and religious discrimination, victimisation and unlawful deductions from pay. The Employment Tribunal dismissed the direct discrimination claims, upheld the pay claim, and upheld two victimisation claims based on the respondent’s refusal to allow her to return to work after a grievance investigation.

The respondent appealed the victimisation findings. The central issues were whether Dr Issler knew that the claimant’s grievance alleged discrimination when she threatened to resign, and whether the respondent’s later decision was made by reason of the claimant’s protected grievance.

1. Appeal allowed. The Employment Tribunal’s judgment was set aside insofar as it concerned victimisation. The EAT held that the respondent had not victimised the claimant.
2. The applicable inquiry was the three-stage approach recognised in Nagarajan v London Regional Transport [1999] IRLR 572 HL, Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830 and St Helens Borough Council v Derbyshire [2007] UKHL 16: whether there was prohibited treatment, whether it was less favourable, and whether it was by reason of the protected act.
3. The tribunal’s finding that Dr Issler knew of the discrimination grievance by 22 July 2005 was unsupported by primary evidence. At that time she knew only that a grievance had been made. The evidence did not establish knowledge that it alleged race or religious discrimination. Her relevant knowledge arose on 3 August 2005.
4. The tribunal had based liability solely on Dr Issler’s alleged knowledge and threat to resign. Once that finding failed, the chain of causation failed. The EAT noted that the statutory focus is on what the respondent did, and that a decision may be tainted by another person’s reaction if that reaction significantly influences the respondent’s action. That route could not assist the claimant on the facts.
5. The respondent’s decision was explained by the Britton-Wood investigation and the need to resolve longstanding personality and professional difficulties in the department. Those problems pre-dated the discrimination allegations. The respondent’s admitted less favourable treatment was not because of the claimant’s grievance.

• Employment Tribunal: dismissed the claims of direct race and religious discrimination, upheld the pay claim, and upheld the victimisation claims. The pay claim was settled.
• Employment Appeal Tribunal: allowed the respondent’s appeal and set aside the victimisation judgment.