Mohammed (T/a Mohammed & Co Solicitors) v Jackson

An Employment Tribunal must make sufficient findings of primary fact and give reasons which explain why it found that a protected act caused the alleged detriment. It must evaluate the employer’s evidence and any explanation for the impugned conduct. A conclusion that there was sufficient evidence of delay, without reasoning on causation or the employer’s explanation, is inadequate and is Meek-defective.

Where inadequate reasons prevent the parties and an appellate court from understanding why the claim succeeded, the defect is an error of law and the case should be remitted for a fresh hearing.

The claimant was employed by the appellant solicitors’ firm. Following sickness absence, the firm refused to allow her to return to work pending medical assessment. She brought proceedings alleging sex discrimination and unlawful deductions, followed by a victimisation claim.

The Employment Tribunal upheld the victimisation claim under section 27 of the Equality Act 2010. It found that, after the first ET1, the respondents delayed their investigation of the claimant’s fitness to work, causing her continuing loss of pay.

The respondents appealed the victimisation finding. They accepted that the first ET1 was a protected act. The central issue was whether the Tribunal had given adequate reasons and made sufficient findings to establish that the delay was caused by that protected act.

1. Appeal allowed. The victimisation claim was remitted for a full rehearing before a fresh Employment Tribunal.

2. The Tribunal’s reference to the claimant having raised a grievance was ambiguous. If it treated that grievance as a separate protected act, it erred because the second ET1 had not advanced such a case. The error did not affect the result, since the appellant accepted that the claimant’s first ET1 was a protected act within section 27(1)(a) and section 27(2)(a) of the Equality Act 2010.

3. The decisive defect concerned reasons. Applying Meek v Birmingham City Council [1987] IRLR 250, the Tribunal had to state its basic factual conclusions and explain why those facts justified its conclusion. Its reasons did not adequately explain why it found that the appellant delayed the medical investigation after the first ET1.

4. The Tribunal did not make adequate primary findings on the relevant correspondence, evaluate Mr Mohammed’s oral evidence, identify a prima facie case requiring an explanation, record his explanation, or explain why it rejected it. Its observation that he misunderstood medical-record legislation did not supply the missing causal reasoning.

5. Accordingly, neither the appellant nor the Appeal Tribunal could understand why victimisation had been found. That was an error of law. The perversity ground, assessed by the high threshold in Yeboah v Crofton [2002] IRLR 634, was not made out.

• Employment Appeal Tribunal: Allowed the respondents’ appeal against the victimisation finding and remitted the claim for a full hearing before a fresh Employment Tribunal.
• Employment Tribunal (Manchester): In a unanimous judgment sent on 1 February 2012, upheld the claimant’s victimisation claim under section 27 of the Equality Act 2010. The unlawful-deduction issue was later settled at review, and the claimant did not challenge the dismissal of her direct sex-discrimination claim.