PASAB Ltd (t/a Jhoots Pharmacy) v Woods

In a victimisation claim, the tribunal must identify the discriminator’s actual reason for the impugned act. It is a question of fact, but the tribunal cannot accept the decision-maker’s subjective reason and then substitute a different reason based on its own objective interpretation of the claimant’s words.

Where dismissal was prompted by the employer’s genuine belief that the claimant had made an offensive racist comment, that reason may be distinct from any implicit complaint of discrimination. In that event, the dismissal is not because the claimant did a protected act. The appeal was therefore allowed and the victimisation complaint dismissed.

The claimant, a pharmacist, was dismissed after her employer believed that she had described the business as a small Sikh club. She denied making the comment, but the Employment Tribunal found that she had made it.

The Tribunal nevertheless held that the comment amounted to an implicit complaint of religious discrimination and that the claimant was dismissed because she had made, or was suspected of making, that protected complaint. The respondents appealed, principally on the proper identification of the reason for dismissal.

1. Appeal allowed. The Employment Tribunal’s finding of victimisation was reversed, the remedy judgment was set aside, and the complaint of victimisation was dismissed.
2. The central question was why the employer dismissed the claimant. Applying the approach in Chief Constable of West Yorkshire Police v Khan, the tribunal had to determine the employer’s conscious or unconscious reason for acting.
3. The Tribunal accepted that the dismissing officer was incensed by, and would have dismissed the claimant for, what she believed was a racist comment. It was not open to the Tribunal to accept that subjective reason and then attribute a different reason to the employer by assessing the objective meaning of the comment.
4. Even if the comment was capable of amounting to a protected act because it could be understood as a complaint of direct religious discrimination under Regulation 3 of the Employment Equality (Religion or Belief) Regulations 2003, the employer’s reason was the genuinely separable belief that the claimant had made an offensive racist remark. The dismissal was therefore not because she had done a protected act.
5. All necessary findings of fact had been made. Remittal was unnecessary. The victimisation complaint was dismissed and the compensation award of £34,748 was set aside.

• Employment Tribunal: Judgment with Reasons promulgated on 25 May 2011. The Tribunal dismissed the other claims but upheld the alternative victimisation claim.
• Employment Appeal Tribunal: Allowed the appeal, reversed the victimisation finding, set aside the remedy judgment and dismissed the complaint.