Lycee Francais Charles De Gaulle v Delambre

An employment tribunal has a very wide discretion to recommend practical action following a finding of discrimination. Practicability is assessed by reference both to the complainant’s adverse effects and to the employer’s position. An across-the-board recommendation is permissible where it can obviate or reduce the adverse effect on the complainant, including where the complainant remains employed. On appeal, substantial restraint is required. Intervention is justified only for an error of law, including a wholly wrong exercise of discretion, reliance on an irrelevant factor, or failure to consider a relevant one.

Ms Delambre succeeded before an employment tribunal in claims of age discrimination and victimisation under the Employment Equality (Age) Regulations 2006. The tribunal awarded compensation and made three recommendations directed to the respondent school’s governing body and senior management: circulation of the judgments, review of equality, disciplinary, grievance and recruitment procedures by an HR professional, and formal equality and diversity training.

Earlier appeals against liability and most of the remedy decision had failed. The remaining appeal concerned whether the recommendations were impracticable, excessive, insufficiently specific, or insufficiently connected with the complainant’s adverse effects.

1. Appeal dismissed. The recommendations made under regulation 38(1)(c) of the Employment Equality (Age) Regulations 2006 were lawful and appropriate.
2. Regulation 38 confers an extremely wide discretion. The tribunal must consider whether a recommendation is just and equitable and whether the proposed action appears practicable. Practicability is assessed in relation to its effect on the complainant and from the employer’s perspective. Only action that is completely impracticable amounts to an error of law.
3. A recommendation may properly be general or ameliorative if the complainant falls within its scope and it can obviate or reduce the adverse effect of the discrimination. That applied particularly because the claimant remained employed. Recommendations concerning promotion, grievances and disciplinary matters could therefore benefit her directly, although they also applied more broadly.
4. The first recommendation was sufficiently intelligible. The translated reference to the school’s Commission Paritaire identified the governing body and relevant leaders. Requiring the judgments to be read and digested was a proper means of confronting those responsible with the tribunal’s findings.
5. The second and third recommendations were not impermissibly wide. The findings concerned equality, recruitment, grievances and the mishandling of alleged misconduct. HR advice and organisation-wide equality and diversity training were connected with reducing the claimant’s adverse effects.
6. The appellate tribunal should read the decision in the round and avoid pernickety analysis. The EAT would not redraft or fine-tune the recommendations merely because it might have expressed them differently.

• Employment Appeal Tribunal: appeals against liability and most of the remedy decision had been dismissed, leaving only the challenge to the recommendations.
• Court of Appeal: the remaining challenge was confined to whether the recommendations were wrongly made.
• Employment Appeal Tribunal: appeal dismissed and the recommendations upheld.