Bham v 2Gether NHS Foundation Trust

For victimisation, a protected act must be an effective cause of the detriment. An employer may, in a clear and exceptional case, act because of a separable feature of the employee’s conduct in making or pursuing a complaint rather than because of the protected act itself.

An Employment Tribunal need not conduct an additional global assessment of race discrimination where it has properly considered each alleged detriment and found that none was racially motivated. A Tribunal considering a litigant’s asserted ill health may make tactful enquiries and require supporting medical evidence. Where it considers means under costs Rule 84, it must explain its decision and give adequate reasons for any award despite an asserted inability to pay.

The claimant, an Asian Muslim and former employee of the respondent NHS trust, brought claims of direct race discrimination, victimisation and harassment related to religion or belief. The Employment Tribunal dismissed the substantive claims, refused reconsideration, and ordered him to pay £1,366 costs for unreasonable conduct in preparing for the hearing.

He appealed all three decisions. The substantive appeal challenged, among other matters, the Tribunal’s approach to victimisation, cumulative assessment, harassment, and adjustments during the hearing. The costs appeal challenged the adequacy of the Tribunal’s reasons concerning his means. The central issues were whether the substantive decisions disclosed an error of law and whether the costs reasons adequately addressed ability to pay.

1. Appeal allowed in part. The appeals against the substantive and reconsideration decisions were dismissed. The appeal against the costs decision was allowed and the costs application remitted to the Employment Tribunal.

2. The Tribunal had correctly directed itself on victimisation. A protected act must be an effective cause of the detriment, but an employer may act because of a feature of the employee’s conduct which is properly separable from the protected act. Applying Martin v Devonshires Solicitors [2011] ICR 352 cautiously, the Tribunal was entitled to find that removal from the team and placement at risk resulted from the claimant’s past and present behaviour and the breakdown of working relationships, not from his grievances or Tribunal proceedings.

3. The Tribunal was not required to add an express holistic conclusion on race discrimination. It had carefully examined every allegation and found no racial motivation. The authorities concerning an overarching discriminatory regime or a series of substantial unexplained breaches did not govern this materially different case.

4. The harassment claim disclosed no error of law. Construction of the alleged remarks is a question of law, while whether they satisfy the statutory test is a mixed question of fact and law. The Tribunal correctly directed itself under Equality Act 2010, section 26, and was entitled to find that the remarks did not amount to harassment. The observation that remarks made outside the claimant’s presence and only later disclosed would be difficult to bring within section 26 was not necessary to the decision.

5. The hearing procedure was fair. A Tribunal may probe a litigant in person’s assertion of ill health and may require medical evidence for a further adjournment. Regular breaks, an invitation to request additional breaks, and a proportionate timetable were reasonable adjustments on the facts.

6. Although Rule 84 does not require a Tribunal to consider means, once it elects to do so it should expressly decide whether to exercise that power and explain its decision. The costs reasons did not adequately identify the claimant’s means, what he could afford, or why an award was justified if he could not afford it. On remittal, the claimant must provide detailed evidence of means; the Tribunal may still award costs despite inability to pay, but must explain its reasoning.

• Employment Appeal Tribunal: allowed the appeal against the costs decision and remitted the costs application; dismissed the appeals against the substantive and reconsideration decisions.
• Employment Tribunal: dismissed the discrimination, victimisation and harassment claims in its decision sent on 14 March 2014; refused reconsideration on 15 April 2014; and ordered the claimant to pay £1,366 costs in reasons sent on 15 July 2014.