Woods v Pasab Ltd (t/a Jhoots Pharmacy and Anor)

Under regulation 4 of the Employment Equality (Religion and Belief) Regulations 2003, victimisation depends on why the alleged discriminator acted. The inquiry is a subjective question of fact, including conscious and unconscious reasons. It is distinct from strict causation or a but-for test. An objectively discriminatory statement, and the fact that it caused the treatment in a strict causal sense, do not establish victimisation unless the protected act was the actual reason, or a substantial part of the reason, for the less favourable treatment. An appellate tribunal may correct an error of law by drawing the proper logical consequences from the employment tribunal’s findings without substituting its own factual findings. Remittal is unnecessary where the existing findings leave no material fact to determine.

Ms Woods appealed against the Employment Appeal Tribunal’s decision of 2 February 2012, which overturned an Employment Tribunal judgment in her favour.

The Employment Tribunal had dismissed her complaints of direct discrimination and harassment but upheld her complaint of victimisation under regulation 4(1)(d) of the Employment Equality (Religion and Belief) Regulations 2003. It found that she had been dismissed after making, or being suspected of making, a comment that the employer treated as alleging discriminatory treatment. A remedy award of £34,748.21 followed.

The EAT held that the Tribunal had misunderstood the reason for the dismissal. The appeal concerned whether the dismissal was because of a protected act or because the employer believed that Ms Woods had made a racist remark, and whether the issue should be remitted for further fact-finding.

The Court of Appeal unanimously dismissed the appeal.

1. The statutory inquiry. Regulation 4(1)(d) of the Employment Equality (Religion and Belief) Regulations 2003 requires the court to identify why the alleged discriminator acted. As explained through the House of Lords’ decision in The Chief Constable of West Yorkshire Police v Khan [2001] UKHL 48, this is a question of fact concerning the discriminator’s conscious or unconscious reason. It is not an inquiry into strict causation or a but-for relationship.
2. Application to the dismissal. Reading the Employment Tribunal’s judgment as a whole, its findings established that Mrs Jhooty dismissed Ms Woods because she believed that Ms Woods had made a racist remark. The Tribunal accepted that she would have dismissed her for that remark alone and rejected the evidence that poor timekeeping and procedural failures also contributed. The fact that the remark could objectively be understood as a complaint of discrimination, and that it was causally connected with the dismissal, did not make it the reason for the dismissal. The protected act played no part, or at least no substantial part, in the decision.
3. Appellate function. The EAT did not substitute its own findings of fact. It accepted the Tribunal’s findings but corrected the legal consequences drawn from them. That was a permissible correction of an error of law.
4. Disposal. Although an employer’s unconscious reasoning may require analysis in an appropriate case, the findings here excluded conscious and unconscious reliance on the protected act. There were no further facts to find, so remittal was unnecessary. The burden-of-proof ground and the respondents’ notice required no further consideration.

• Court of Appeal (Civil Division) [2012] EWCA Civ 1578: dismissed the appeal and upheld the EAT’s analysis.
• Employment Appeal Tribunal (2 February 2012): overturned the Employment Tribunal’s victimisation finding, holding that the Tribunal had erred in its analysis of the reason for dismissal.
• Employment Tribunal: dismissed the direct discrimination and harassment complaints but upheld the victimisation complaint and made a remedy award of £34,748.21.