Unwin v Oltec Group Trading Ltd & Anor

A tribunal may not rewrite an express contractual minimum-hours term as a maximum-hours term without a solid evidential basis. A finding contrary to the written term, the parties’ case and the practical evidence may be perverse.

In disability discrimination claims, a tribunal must address the applicable provisions of the Equality Act 2010, including the statutory burden of proof. An appeal may nevertheless fail despite an omitted direction if the tribunal demonstrably applied the law correctly or its factual findings inevitably justify the result. Where neither is apparent, the discrimination claims must be remitted.

The claimant, a security guard employed by the first respondent and assigned to the second respondent’s site, had a written contract stating that he was employed for a minimum of 48 hours in a seven-day period. He usually worked 69 hours. After treatment for prostate cancer and a later ankle injury, his GP certified him fit for work, but he was not immediately returned to the site.

The East London Employment Tribunal rejected claims including disability discrimination, dismissal and unlawful deduction of wages. It found that the contractual reference to a minimum of 48 hours was an error and meant a maximum. The claimant appealed. The central issues were whether that contractual finding was perverse and whether the Tribunal had lawfully determined the discrimination claims.

1. Appeal allowed and claims remitted. The Employment Appeal Tribunal set aside the finding that the contract’s reference to a minimum of 48 hours meant a maximum of 48 hours.

2. The contractual finding was perverse. The written term required a solid basis before it could be displaced. No party had advanced a positive case that it was erroneous, there was no supporting evidence from the original employer, and the claimant in fact usually worked 69 hours. The Working Time Regulations opt-out and the offer of ad hoc work to make the claimant’s hours up to 48 were also inconsistent with a contractual maximum of 48 hours.

3. The finding that the claimant had not been dismissed during the telephone conversation of 11 May 2012 could not stand. It had been reached against the erroneous contractual premise and amid confused and inconsistent findings about that conversation. The Tribunal was to reconsider whether there had been a dismissal and its consequences.

4. The disability discrimination determinations were also set aside. Although the claimant’s disability was undisputed, the Tribunal did not direct itself on sections 13, 15, 41 or 136 of the Equality Act 2010. It incorrectly stated that the burden lay on the claimant. Its reasons did not show a coherent application of those provisions or factual findings which inevitably resolved the claims.

5. In particular, the Tribunal had not adequately addressed why the second respondent required special reassurance of the claimant’s capability, whether that requirement arose because of his cancer, and whether it could be justified. The unlawful deduction claim also depended on the erroneous contractual finding and was remitted.

• Employment Appeal Tribunal: appeal allowed; the claims for disability discrimination, unfair dismissal and dismissal by reason of disability discrimination, and unlawful deduction of wages were remitted.
• East London Employment Tribunal: decision sent to the parties on 8 January 2014 after a hearing from 26 to 28 June 2013. It had rejected the relevant claims.