Leeds Teaching Hospital NHS Trust v Blake

Victimisation requires a finding that a protected act significantly influenced the decision-maker’s mental processes, consciously or unconsciously. Unreasonable treatment alone does not establish that causal link. A finding that an employee was regarded as a troublemaker must distinguish hostility to protected acts from hostility arising from unrelated conduct.

Under section 98(4) of the Employment Rights Act 1996, an Employment Tribunal must assess the employer’s findings, investigation, procedure and sanction against the objective reasonable-employer standard. It must not substitute its own factual conclusions or require an unduly exacting investigation without recognising the range of reasonable responses.

The Claimant, a Security Officer subject to a final written warning, took a cruise after her request for leave had been refused. The Trust dismissed her for taking unauthorised leave and disobeying management instructions. On appeal internally, the dismissal was upheld as dismissal for serious misconduct, with notice pay.

The Leeds Employment Tribunal, by a judgment dated 4 August 2014, upheld claims of victimisation and unfair dismissal. It found that the real reason for dismissal was the Claimant’s protected acts. Alternatively, it held that dismissal for conduct was unfair.

The Trust appealed. The central issues were whether the Tribunal had adequately reasoned its conclusion that the protected acts caused the dismissal, and whether it had applied the statutory reasonable-employer test for unfair dismissal.

1. Appeal allowed. The findings of victimisation and unfair dismissal were set aside and both claims were remitted to a freshly constituted Employment Tribunal.

2. For victimisation under section 27(1) of the Equality Act 2010, the Tribunal had to examine the mental processes of the relevant decision-makers and determine whether the protected acts significantly influenced their decisions, consciously or unconsciously. It would have been sufficient if misconduct was the principal reason but the protected acts significantly influenced the decision. The Tribunal, however, had found the protected acts to be the principal reason.

3. That serious conclusion lacked adequate findings. The Tribunal did not clearly determine whether Mr Young and Ms Green genuinely believed that the Claimant had committed misconduct. Nor did it analyse their knowledge and beliefs about the protected acts. Unreasonable treatment does not of itself justify an inference of victimisation. A conclusion that the Claimant was treated as a troublemaker also required a distinction between protected acts and other conduct or credibility concerns.

4. On unfair dismissal, section 98(4) of the Employment Rights Act 1996 required an objective assessment of the employer’s investigation, process, fact-finding and sanction. The Tribunal had instead made and relied on its own findings about the induction process, the Claimant’s supposed confusion, and the leave policy, without first assessing whether the employer’s contrary conclusions were reasonable.

5. The Tribunal also imposed an excessively high standard of investigation and failed to recognise the range of reasonable responses. Read as a whole, its reasoning disclosed a substitutionary mindset despite its correct self-direction. Remittal was necessary because the Appeal Tribunal could not determine the claims itself.

• Employment Appeal Tribunal: Allowed the Trust’s appeal and remitted both claims to a freshly constituted Employment Tribunal: [2015] UKEAT 0430_14_1507.
• Employment Tribunal (Leeds): By a judgment dated 4 August 2014, upheld the Claimant’s claims of victimisation and unfair dismissal.