Phelan v Rolls-Royce Plc & Ors

Where an Employment Tribunal has found a potentially fair reason for dismissal, it must determine fairness under section 98(4) of the Employment Rights Act 1996. That requirement is met where the reasons, read fairly as a whole, show that the Tribunal asked and answered the range-of-reasonable-responses question.

A complaint concerning a pregnancy-related remark must be considered in both forms in which it is advanced: direct sex discrimination and sexual harassment. Under the pre-Equality Act harassment provisions, the question includes whether it was objectively reasonable for the claimant to feel that their dignity had been violated.

The claimant brought seven combined claims against her employer and individual respondents. The Employment Tribunal dismissed all claims except one victimisation complaint, for which it awarded £2,000 for injury to feelings. It later made a costs order against the claimant.

Following preliminary appellate stages, only two grounds proceeded to a full hearing: whether the Tribunal had assessed the fairness of dismissal for some other substantial reason under section 98(4) of the Employment Rights Act 1996, and whether it had determined sexual harassment as well as direct discrimination arising from a manager’s pregnancy-related remark during a grievance meeting.

1. Appeal dismissed. Both grounds that had been permitted to proceed failed on a fair reading of the Employment Tribunal’s reasons.
2. The Tribunal had accepted that the dismissal was for some other substantial reason: after nine months of medical redeployment, no suitable alternative role had been found and the claimant had failed to engage with that process. Although one paragraph referred speculatively to frustration of contract, the actual finding was that the employer dismissed the claimant by letter. The Tribunal then expressly asked whether dismissal was unfair within the range of reasonable responses and answered that it was fair. It also recorded in its conclusions that dismissal was fair. It had therefore carried out the assessment required by section 98(4) of the Employment Rights Act 1996.
3. The Tribunal had also considered the manager’s pregnancy-related remark as both direct sex discrimination and sexual harassment. Its description of the complaint as one of sexual harassment/discrimination, and its reference to whether the conduct was discriminatory “in one shape or form”, demonstrated that it addressed both bases.
4. Applying the objective approach to harassment explained in Richmond Pharmacology Ltd v Dhaliwal [2009] IRLR 336, the Tribunal was entitled to find that it was not objectively reasonable for the claimant to feel that her dignity had been violated. The professional and considerate character of the meeting, reflected in the trade union representative’s contemporaneous email, supported that factual conclusion. The Tribunal’s rejection of direct discrimination was likewise adequately reasoned.
5. The limitation point did not arise.

• Employment Appeal Tribunal: Appeal against the Employment Tribunal’s liability and costs judgments. After the Rule 3 process, two grounds were permitted to proceed. This court dismissed both grounds.
• Employment Tribunal: Judgment with reasons dated 8 October 2012. All claims were dismissed except one victimisation complaint, for which £2,000 injury-to-feelings compensation was awarded. A later costs order required the claimant to pay £10,000.