Yekinni v London Borough Of Hackney & Ors

A claim of pregnancy discrimination under section 3A(1) of the Sex Discrimination Act 1975 requires proof of adverse or unfavourable treatment on the prohibited ground. It does not require a comparator, and it is an error to treat comparison with a male employee as essential.

An appellate tribunal may uphold reasons containing an important legal error only if it is sure that the error did not shape the findings and that those findings make the result plainly and unarguably correct. Victimisation must be assessed by asking whether the protected act caused less favourable treatment than would have been given to others. Unsatisfactory questionnaire answers do not automatically justify an adverse inference.

The claimant accepted part-time employment with the respondent local authority while also employed full-time by an NHS employer. On her first day she disclosed her pregnancy, became unwell with pregnancy-related sickness, and later complained about the respondent's treatment at a meeting concerning her working arrangements and pay.

The Employment Tribunal sitting in London, by a judgment dated 6 July 2012, rejected claims for pregnancy-related direct sex discrimination, constructive unfair dismissal, unlawful deductions and victimisation. The claimant appealed. The central issues were whether the Tribunal had applied the correct legal tests for pregnancy discrimination and victimisation, and whether its conclusions on constructive dismissal and a statutory questionnaire could stand.

1. Appeal allowed. The Employment Tribunal's decision was set aside and the case was remitted in its entirety to a freshly constituted Tribunal for a fresh hearing.

2. The Tribunal had applied the wrong statutory approach to pregnancy discrimination. Section 3A(1) of the Sex Discrimination Act 1975, rather than the earlier comparator-based provisions, governed the claim. Less favourable treatment in that provision means adverse or unfavourable treatment of the pregnant woman. It requires no comparator, particularly no male comparator. The Tribunal's treatment of comparison with a male employee as an essential part of the inquiry was therefore an error of law.

3. The error could not safely be treated as immaterial. An appellate tribunal may uphold legally defective reasons only where it is sure that the error played no part in the findings and that, on the correct law, the result was plainly and unarguably correct. The erroneous comparator approach appeared in the Tribunal's statement of law, burden-of-proof analysis and central conclusions. The Appeal Tribunal could not safely substitute its own decision.

4. The constructive-dismissal issue was bound up with the unsafe discrimination reasoning. The fresh Tribunal must determine each alleged fundamental breach, including the treatment at the meeting and the suspension or non-payment of wages, and make findings on the reason for the resignation. It should also apply the contractual sick-pay provision correctly. Section 99 of the Employment Rights Act 1996, read with regulation 20 of the Maternity & Parental Leave Regulations 1999, protects an employee where the reason or principal reason for dismissal is connected with pregnancy.

5. The Tribunal also used the wrong test for victimisation. The required inquiry was whether, by reason of the protected act, the respondent treated the claimant less favourably than it would have treated other persons. Its conclusions did not demonstrate that it had reliably undertaken that inquiry.

6. On the statutory questionnaire, the fresh Tribunal should make clear findings on the statutory conditions before deciding whether to draw an inference. There is no mechanistic rule requiring an adverse inference from an omission, evasive answer or equivocal answer. The question is whether the particular act or omission tends to show the alleged discriminatory motivation.

• Employment Appeal Tribunal: appeal allowed; the Employment Tribunal decision was set aside and all issues were remitted for a fresh hearing.
• Employment Tribunal (London): by a judgment dated 6 July 2012, rejected the claimant's claims for direct sex discrimination on grounds of pregnancy, constructive unfair dismissal, unlawful deduction from wages and victimisation.