Williams v Bannatyne Fitness Ltd

The reverse burden of proof in section 17A(1)(c) of the Disability Discrimination Act 1995 applies to a complaint of victimisation under section 55. Victimisation is imported into Part II of the Act and is therefore within the statutory burden provision.

An Employment Tribunal must separately determine direct discrimination and disability-related discrimination, applying the correct burden of proof and giving adequate reasons. Where the applicable burden is unclear and a material claim has not been expressly determined, the decision cannot stand and the claims should ordinarily be remitted for fact-finding.

The claimant, who was disabled, brought claims against his former employer for victimisation, direct disability discrimination, disability-related discrimination, and failures to make reasonable adjustments under the Disability Discrimination Act 1995.

The Birmingham Employment Tribunal upheld the reasonable-adjustments claim in part but dismissed the other claims in reasons promulgated on 26 January 2011. It treated the reverse burden of proof as inapplicable to victimisation and gave brief reasons for dismissing the direct and disability-related discrimination claims.

The claimant appealed. The central issues were whether the reverse burden applied to the three dismissed discrimination claims, whether the reasons were adequate, and whether the Appeal Tribunal should substitute findings or remit the claims.

1. Appeal allowed. The Employment Tribunal's dismissals of the victimisation, direct discrimination and disability-related discrimination claims were set aside and remitted to the same Tribunal.

2. The Tribunal was wrong to treat the reverse burden of proof as unavailable for victimisation. The Court of Appeal decision in Oyarce v Cheshire County Council [2008] ICR 1179 concerned the particular wording of the Race Relations Act 1976. Under the Disability Discrimination Act 1995, section 17A(1) covers complaints of discrimination rendered unlawful under Part II, and section 17A(1)(c) applies the reverse burden to such complaints. Section 55 places victimisation within Part II. The reverse burden therefore applied to victimisation.

3. The reverse burden also applied to the direct and disability-related discrimination complaints. The Tribunal had placed the burden on the claimant throughout when rejecting victimisation. Its reasons did not show what burden it applied to the other claims. Further, its conclusion addressed only discrimination on the ground of disability and made no express finding on disability-related discrimination under section 3A(1).

4. Those defects were material. The reasons, particularly paragraph 40, did not meet the standard in Meek v City of Birmingham District Council [1987] IRLR 250 or rule 30(6) of the ET Rules of Procedure.

5. The Appeal Tribunal would not second-guess the factual outcome or substitute findings. A Burns/Barke reference was inappropriate. Reconsideration by the original Tribunal was proportionate because no further evidence was required and there was no indication of unfairness by that Tribunal. The parties were directed to exchange written skeleton arguments 14 days before the remitted hearing.

• Employment Appeal Tribunal: Allowed the claimant's appeal and remitted the victimisation, direct discrimination and disability-related discrimination claims to the same Employment Tribunal.

• Birmingham Employment Tribunal: In reasons promulgated on 26 January 2011, dismissed those three claims while upholding the reasonable-adjustments claim in part. There was no appeal or cross-appeal concerning reasonable adjustments.