Olayemi v Athena Medical Centre

In a discrimination claim, the tribunal must decide whether the proved primary facts could support an inference of discrimination in the absence of an adequate explanation. It may consider those facts cumulatively. It must then assess the respondent’s explanation. The statutory burden-of-proof stages are a practical aid and do not displace positive findings on the evidence.

A tribunal must confine a harassment finding to the pleaded allegations and agreed issues. An employer may deduct pay for absence or reduced work only where the reason for the absence involves the employee’s breach of contract. A connected series of unauthorised deductions may be claimed as a series.

The Employment Tribunal upheld Dr Olayemi’s claims for unfair dismissal, sex discrimination and breach of contract, but dismissed her unlawful-deduction claims as out of time. It also rejected her claim to bonuses. Both sides appealed.

The respondents challenged the Tribunal’s approach to the burden of proof, its harassment findings, and its conclusions on deductions from salary and mobile-phone charges. Dr Olayemi challenged the dismissal of her unlawful-deduction claim and the rejection of her bonus claim. The central questions were whether the discrimination and deduction findings disclosed errors of law, and whether the deductions formed a recoverable series.

1. The cross-appeals were each allowed in part. The respondents’ appeal succeeded only because the Employment Tribunal had treated matters outside the pleaded and agreed allegations as harassment. A tribunal must determine harassment by reference to the acts identified in the claim and agreed list of issues. The finding was therefore confined accordingly.

2. The respondents’ burden-of-proof challenge failed. The Tribunal had identified primary facts capable, taken together and absent an adequate explanation, of supporting an inference of sex discrimination. Those included gendered and demeaning comments, threats, and treatment from which the Tribunal could infer that an otherwise comparable male doctor would not have been treated similarly. It was entitled to consider the facts cumulatively rather than in isolation.

3. The Tribunal did not wrongly exclude the respondents’ explanation. It considered that explanation at length before finding that the unwanted conduct related to sex and created the prohibited environment. Its identification of a hypothetical comparator as a male doctor in precisely the same circumstances was correct. Its finding concerning the conversation with the claimant’s mother was not perverse, since it distinguished the initiation of the call from the conversation found to have occurred.

4. The respondents’ challenge to the contractual deductions failed. A deduction for reduced or absent work depends on why there was no work. The respondents had not shown that the reduced or unpaid periods resulted from a breach of contract by Dr Olayemi. Nor had they established that the Tribunal’s treatment of the mobile-phone evidence was perverse.

5. Dr Olayemi’s appeal succeeded on unlawful deductions. On the Tribunal’s findings, the unauthorised deductions from May 2007 were connected and formed a series. The issue of quantum was remitted to the same Tribunal, if practicable. Her bonus appeal failed: the bonuses were discretionary, she had no contractual entitlement to them, and the findings provided no basis for the pleaded discrimination claim.

• Employment Appeal Tribunal: Cross-appeals allowed in part. The claimant’s unlawful-deduction claim from May 2007 was remitted for quantum; the respondents succeeded only on the scope of the harassment findings.
• Employment Tribunal: The Tribunal upheld claims for unfair dismissal, sex discrimination and breach of contract, dismissed unlawful-deduction claims as out of time, and rejected the bonus claim. Its decision was sent to the parties on 25 October 2010.