Athena Medical Centre v Olayemi

In a discrimination claim, a tribunal may assess the primary facts cumulatively when deciding whether the burden of proof has shifted. It must first identify facts from which it could conclude, absent an adequate explanation, that unlawful discrimination occurred. It may then consider the respondent’s explanation and make positive findings on the evidence.

A tribunal must confine a harassment finding to the acts advanced in the claim and agreed issues. A deduction from pay is not justified merely because there was reduced or no work. The employer must show that the reason involved the worker’s breach of contract.

Dr Olayemi, a general practitioner at Athena Medical Centre, brought claims for unfair dismissal, sex discrimination, sex-related harassment, breach of contract and unlawful deductions from wages after her employment ended in August 2008.

The Employment Tribunal upheld her unfair dismissal, discrimination and breach of contract claims. It dismissed her unlawful-deduction claims as out of time. Both sides appealed. The employers challenged the Tribunal’s approach to the burden of proof, the scope of its harassment finding, and deductions from salary and mobile-phone charges. Dr Olayemi challenged the dismissal of her wage claim and the rejection of her bonus claim.

The central issues were whether the discrimination findings disclosed an error of law, whether harassment had been found beyond the pleaded issues, and whether the deductions formed a continuing series.

1. The appeals were allowed in part. The employers’ appeal succeeded only insofar as the Tribunal had treated matters outside the ET1 and Agreed List of Issues as harassment. Dr Olayemi’s appeal succeeded on unlawful deductions from wages. Quantum was remitted to the same Tribunal, if practicable.

2. The Tribunal had not erred in its approach to the burden of proof. Applying Hewage v Grampian Health Board [2012] ICR 1054, the first stage required proof of facts from which discrimination could be inferred in the absence of an adequate explanation. The Tribunal was entitled to assess the primary facts as a whole. Several findings, including sex-related threats, demeaning treatment and remarks, could support that inference. It also considered the employers’ explanation fully before reaching its conclusion.

3. The Tribunal had correctly identified a hypothetical comparator: a male doctor in precisely the same circumstances. Its finding that such a doctor would not have been treated in the same belittling and hostile way disclosed no error. Its finding concerning the telephone conversation with Dr Olayemi’s mother was not perverse. The Tribunal had made no finding about who initiated the call, but could find that the conversation occurred.

4. However, a tribunal must decide harassment only by reference to the acts specified in the claim and agreed issues. The wider formulation in the Tribunal’s harassment conclusion therefore could not stand.

5. The employers had not established that reduced or unpaid salary in 2007 resulted from a breach of contract by Dr Olayemi. Their unexplained and arbitrary reduction of salary did not justify the deductions. Nor was the Tribunal perverse in declining to find that she had made the mobile-phone calls for which deductions were made.

6. On the Tribunal’s findings, the deductions from May 2007 had a connected reason and formed a series. Dr Olayemi was therefore entitled to recover them, subject to a remitted assessment of quantum. The bonus appeal failed because bonuses were discretionary, no contractual entitlement was proved, and the findings supplied no basis for a discrimination claim concerning the 2005 bonus.

• Employment Appeal Tribunal: allowed each side’s appeal only in the limited respects stated; remitted quantum of unlawful deductions from May 2007.
• Employment Tribunal, East London Hearing Centre: judgment sent on 25 October 2010. It upheld claims for unfair dismissal, sex discrimination and breach of contract, and dismissed the unlawful-deduction claims as out of time.