The Learning Trust & Ors v Marshall

Unreasonable or inadequate handling of a discrimination complaint does not, without more, establish direct discrimination. The tribunal must determine whether the treatment occurred because of the protected characteristic, applying the burden of proof correctly and addressing central factual issues.

A qualifying disclosure must convey information, rather than make a bare allegation. Information giving factual particulars which tends to show a breach of a legal obligation may qualify. For automatic unfair dismissal under section 103A, the tribunal must identify the protected disclosures relied on and decide whether their making was the principal reason for dismissal.

The claimant, a teacher, brought claims against her employer, the school and associated respondents arising from her suspension and dismissal. The Employment Tribunal upheld claims including direct race and sex discrimination concerning a Key Stage 1 co-ordinator appointment, race discrimination in grievance handling and dismissal, whistleblowing detriment and dismissal, and a failure to make reasonable adjustments.

The respondents appealed on the discrimination, protected-disclosure and reasonable-adjustment findings. They did not challenge the findings of ordinary unfair dismissal, wrongful dismissal or holiday pay. The principal questions were whether the Tribunal had applied discrimination law and the burden of proof correctly, whether three letters were protected disclosures, whether protected disclosures were the principal reason for dismissal, and the scope of any reasonable adjustment concerning the claimant's husband attending meetings.

1. The appeal was allowed in part. The findings of direct race and sex discrimination were set aside. The protected-disclosure detriment finding concerning suspension was upheld. The section 103A dismissal finding was set aside. The reasonable-adjustment finding was upheld in relation to the 7 May 2008 hearing, but could not extend to later hearings at which the claimant had union representation and her husband was permitted to attend.

2. The Tribunal had failed to resolve the central factual issue whether the successful KS1 candidate was ring-fenced for the post. It also applied the burden of proof wrongly by treating different treatment of persons of different races as sufficient, without more, to shift the burden. Its conclusions concerning both the appointment and the absence of a meeting lacked findings necessary to show treatment because of race or sex.

3. An unreasonable or incomplete investigation of a discrimination grievance does not itself establish discrimination. The Tribunal had to determine why each decision-maker acted as they did, assess facts capable of supporting an inference of racial motivation, and, if necessary, assess the explanations. Its reasoning did not perform that analysis and could not support its findings on grievance handling, dismissal or holiday pay.

4. The letters of 6 June, 10 July and 13 July 2007 contained factual information about pay progression and the recruitment process. They were qualifying disclosures under Employment Rights Act 1996, since the information tended to show unlawful discrimination or breach of an employment-related legal obligation. The finding that suspension was because of those disclosures was open to the Tribunal.

5. For dismissal under section 103A, the Tribunal had to decide which grievances were protected disclosures and whether making one or more of them was the principal reason for dismissal. It had made findings only about three letters and had not addressed the other alleged disclosures. Its conclusion was therefore incomplete.

6. The remaining disputed matters were remitted to a freshly constituted tribunal. Remedy for the unchallenged and upheld claims was also remitted.

• Employment Appeal Tribunal: Allowed the appeal in part; set aside the discrimination and section 103A findings, upheld the protected-disclosure suspension finding, and remitted outstanding issues to a freshly constituted tribunal.
• Employment Tribunal, London South: By a judgment dated 6 September 2010, upheld, among other claims, findings of direct discrimination, whistleblowing detriment, unfair dismissal, wrongful dismissal, holiday pay and failure to make reasonable adjustments.