Dziedziak v Future Electronics Ltd (Sex Discrimination)

Fairness of a redundancy dismissal under Employment Rights Act 1996 depends on the overall reasonableness of the process. Consultation is unfair where an employee is not given sufficient information to understand and address the matters affecting selection.

An appellate court must read an Employment Tribunal’s reasons as a whole. It should not overturn permissible factual findings through an over-detailed examination of individual matters.

For indirect sex discrimination, the claimant must establish that the alleged provision, criterion or practice caused her actual particular disadvantage before the burden of proof can shift. An instruction not to speak an employee’s own language may intrinsically concern nationality. If it is imposed on that employee but not others, it can justify an inference of direct race discrimination absent an adequate explanation.

The Claimant was selected for redundancy from her asset-manager role. The Reading Employment Tribunal, in Reasons dated 24 November 2010, held by a majority that the dismissal was unfair because the employer had not disclosed sub-criteria used in selection. It nevertheless reduced compensation to nil under Polkey, finding that disclosure would not have altered the Claimant’s selection.

The Tribunal dismissed claims of sex and age discrimination. It upheld a race discrimination claim after finding that the Polish Claimant had been instructed not to speak in her own language at work, without an adequate explanation.

The Claimant appealed the redundancy, compensation and sex-discrimination findings. The employer cross-appealed the findings of unfair dismissal and race discrimination. The central issues were the fairness of consultation, the nil Polkey award, and whether the discrimination findings were legally sustainable.

1. All appeals and cross-appeals were dismissed. The majority of the Employment Tribunal was entitled to find that consultation was unfair. Although the main selection criteria had been disclosed, the Claimant could not properly and systematically address all the undisclosed sub-criteria. That conclusion applied the general fairness requirement in section 98(4) of the Employment Rights Act 1996 and was plainly permissible.

2. The Tribunal’s reasons had to be read fairly, as a whole and in context. It was not required to resolve every factual contention or argument. Its findings that there was a genuine redundancy, an appropriate selection pool, rational criteria, objective scoring and adequate consultation apart from non-disclosure of the sub-criteria could not be impugned as perverse.

3. The Claimant could challenge findings bearing on the live Polkey issue despite having succeeded on unfair dismissal. The Tribunal permissibly found that effective consultation could at most have improved limited aspects of her score, without changing her ranking. Its conclusion that compensation should be reduced to nil was therefore open to it under Polkey v A E Dayton Services Ltd [1987] IRLR 503.

4. The sex-discrimination appeal failed. The alleged disadvantage was that childcare-related lateness adversely affected redundancy scoring. The Tribunal was entitled to find that lateness had not been shown to be a factor in that scoring. The Claimant had therefore not established her own actual particular disadvantage, which was necessary before the statutory burden of proof could shift.

5. The employer’s race-discrimination cross-appeal also failed. The Tribunal had found that the Claimant was told not to speak her own language, which intrinsically linked the instruction with her nationality. In a workplace where other employees were not subject to that restriction, that was capable of being less favourable treatment and a detriment on racial grounds. The employer gave no adequate explanation, so the Tribunal was entitled to uphold the claim. Compensation remained for assessment in its proper context.

• Employment Appeal Tribunal: Appeals by the Claimant and cross-appeals by the employer were dismissed.
• Reading Employment Tribunal: In Reasons dated 24 November 2010, the Tribunal held by a majority that the redundancy dismissal was unfair, but reduced compensation to nil under Polkey. It dismissed the sex-discrimination claim and upheld a claim of race discrimination concerning the instruction not to speak the Claimant’s own language.