Flattley v Cleveland Police Authority

In a victimisation claim, the tribunal must first compare the treatment of the claimant with the treatment that would have been given to a person in materially the same circumstances who had not done the protected act. If that comparator would have received the same treatment, the claim fails at that stage and it is unnecessary to determine the employer’s reason.

An appellate tribunal may substitute its own conclusion rather than remit where applying the correct test permits only one answer. Case-management decisions, including refusal of an adjournment, will not be disturbed absent an error of law.

The Claimant, a civilian employee of the Police Authority, alleged disability discrimination and victimisation after developing a mild anxiety disorder. An Employment Tribunal found that she was not disabled for the purposes of the Disability Discrimination Act 1995. It rejected victimisation complaints concerning a management memorandum and her dismissal, but upheld a complaint concerning her suspension. It also found her dismissal unfair.

The Claimant appealed the refusal of an adjournment, the disability finding and the rejected victimisation complaints. The Police Authority appealed the finding that the suspension was victimisation. The earlier EAT had remitted the disability issue for reconsideration after fresh medical evidence was admitted.

1. The Claimant’s appeals were dismissed and the Police Authority’s appeal was allowed. The award made for victimisation arising from the suspension was set aside. The unchallenged finding of unfair dismissal remained in force.

2. The refusal to adjourn for further medical evidence was a conventional case-management decision. The Employment Tribunal had balanced the relevant circumstances and was entitled to proceed after considering the extensive medical material already available. Its finding that the Claimant had a mental impairment but no substantial adverse effect on relevant day-to-day activities under Schedule 1 to the Disability Discrimination Act 1995 was one of fact and assessment, disclosing no error of law.

3. Under section 55 of the Disability Discrimination Act 1995, the correct comparator was an employee in the Claimant’s circumstances who had behaved in the same way but had not raised health, disability or disability-discrimination complaints. The Employment Tribunal found that such an employee would also have been the subject of the management memorandum and dismissed. Those findings were fatal to those victimisation claims. Consideration of the employer’s reason was unnecessary, although its findings also supported the conclusion that the protected acts were not the reason for either measure.

4. The Tribunal erred in upholding the suspension complaint. It determined a case that had not been advanced by the Claimant, namely that earlier firm management action would have avoided the eventual suspension. In any event, it failed to focus on the material time: the Claimant’s return to work after the managers’ memorandum. The correct comparator would also have been suspended in those circumstances. Applying the correct test admitted of only one conclusion, so remittal was unnecessary.

5. The request for a restricted reporting order was refused. The statutory route was unavailable because the earlier order had lapsed. The Claimant had not shown a compelling privacy case sufficient to outweigh open justice under Articles 6 and 8 of the European Convention on Human Rights.

• Employment Appeal Tribunal: dismissed the Claimant’s challenges to case management, disability and the rejected victimisation complaints; allowed the Police Authority’s appeal against the suspension-victimisation finding.
• Employment Tribunal: in a judgment sent on 16 October 2012, rejected the memorandum and dismissal victimisation complaints, upheld the suspension complaint, and found the dismissal unfair.
• Earlier Employment Appeal Tribunal: allowed an appeal on the disability issue, admitted fresh medical evidence and remitted that issue to the Employment Tribunal for rehearing.