Groves v The House of Commons Commission & Ors

Where facts permit an inference of disability victimisation, the burden shifts to the employer to prove a wholly non-discriminatory reason for the impugned treatment. The tribunal must address both conscious and subconscious motivation and determine the true “reason why”. A temporal connection with protected acts may establish the first stage, but it does not compel a finding of victimisation where the employer proves that the acts played no part in its decision.

Evidence of post-termination conduct may properly be received in a combined liability and remedy hearing where it is confined to remedy, including a potential limitation of compensation, and does not influence liability.

The claimant appealed against the Employment Tribunal’s dismissal of his disability discrimination claims arising from the non-confirmation of his probationary appointment by the House of Commons Commission.

Only two grounds proceeded after the rule 3(10) process: whether the Tribunal had misapplied the burden of proof on his victimisation claim, and whether evidence of his post-termination conduct had been used for an impermissible purpose. The protected acts occurred shortly before the decision not to renew his appointment. The original hearing had dealt with liability and any remedy together.

1. Appeal dismissed. The Employment Tribunal correctly applied the burden of proof to the victimisation claim. The timing of the protected acts and the non-renewal created suspicious circumstances and satisfied stage 1 of the Igen v Wong exercise. The burden therefore shifted to the respondent to establish a wholly non-discriminatory reason for dismissal.

2. The Tribunal then took each required step. It excluded conscious victimisation and considered subconscious motivation. Its finding that the protected acts played no part in the decision, which was solely caused by the claimant’s earlier conduct, answered the relevant “reason why” question. The respondent had therefore discharged the burden under section 17A(1)(c) of the Disability Discrimination Act 1995.

3. The Appeal Tribunal could not substitute its own assessment of the factual matrix. The Tribunal’s conclusion, reached after hearing the evidence, was neither perverse nor affected by a patent legal misdirection.

4. The post-termination evidence had been admitted because the hearing encompassed remedy as well as liability. It was relevant to the respondent’s alternative case that any compensation should be limited, and later to costs. The Tribunal had appropriately treated it as evidence relevant only to “remedy if it arises”; there was no basis for finding that it clouded the liability decision.

• Employment Appeal Tribunal: appeal dismissed; the Employment Tribunal’s dismissal of all claims was upheld.
• Employment Tribunal: London Central Employment Tribunal dismissed all claims in reasons promulgated on 13 June 2011. No citation is stated in the judgment.