Rajaratnan v Care UK Clinical Services Ltd

For indirect discrimination under section 19 of the Equality Act 2010, a claimant must establish both disadvantage to the protected group and the same disadvantage to the claimant. An appellate court should not supply factual findings which the tribunal failed to make.

Justification ordinarily concerns the rule or PCP, not an ad hoc exception for one person. Where the legitimate aim and proportionality of the rule are plain, a brief tribunal explanation may suffice. A tribunal cannot determine an unpleaded claim under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 without giving the opposing party a fair opportunity to meet it.

The claimant, a part-time GP at a 24-hour urgent-care centre, challenged a contractual requirement to work night shifts as indirect sex discrimination. The Employment Tribunal dismissed that claim, holding alternatively that the requirement was justified.

The Tribunal also purported to uphold a part-time worker detriment complaint under Regulation 5 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, although the pleaded complaint was under Regulation 7. It later made a costs order against the claimant.

The claimant appealed the liability and costs decisions. The respondent cross-appealed on the part-time worker claim. The central issues were the effect of the Tribunal's erroneous comparison pool, the validity of its justification finding, the unpleaded Regulation 5 decision, and the proper disposal of the Regulation 7 and costs issues.

1. The claimant's liability appeal was allowed only to the extent of the Tribunal's error in identifying the comparison pool. The Tribunal had not made adequate findings of group disadvantage and individual disadvantage required by Essop. The EAT could not repair that evidential deficiency by conducting its own assessment of the evidence on appeal.

2. Nevertheless, the dismissal of the indirect sex discrimination claim stood. The Tribunal's alternative finding that the night-working PCP was justified was a complete answer. Following Seldon and Homer, the relevant question was whether the rule was justified, rather than whether a personal exception should have been made for the claimant. The requirement enabled the provision of urgent healthcare on a 24/7 basis by salaried GPs. That aim and the resulting proportionality were sufficiently plain. The Tribunal was entitled to conclude that there was nothing material to balance against the rule's discriminatory impact.

3. The respondent's cross-appeal was allowed. The Tribunal had determined a Regulation 5 claim which had not been pleaded, and had failed to determine the Regulation 7 claim which was before it. The EAT could not uphold the Regulation 5 result: doing so would deny the respondent a fair hearing on a claim it had not been required to meet.

4. As to Regulation 7, the first alleged detriment could not succeed because the weekend rota resulted from the claimant's own request to work weekends only. The second allegation, concerning the contents of the letter of 16 January 2013, could not be resolved on the findings. It was remitted to the same Tribunal.

5. The costs appeal was allowed to a limited extent. Although the Tribunal had sufficiently applied the Yerrakalva approach, it had to reconsider the costs award in light of its error on indirect discrimination. That issue was also remitted to the same Tribunal, so far as practical. Permission to appeal to the Court of Appeal was refused. The respondent was ordered to pay £400 towards the claimant's appeal fees.

• Employment Appeal Tribunal: The claimant's appeals were allowed to limited extents and the respondent's cross-appeal was allowed. The EAT upheld the ultimate dismissal of the indirect sex discrimination claim, set aside the unpleaded Regulation 5 determination, and remitted the remaining Regulation 7 and costs matters to the same Tribunal.
• Watford Employment Tribunal: Its Liability Judgment, sent on 2 July 2014, dismissed the indirect sex discrimination claim but upheld in part a part-time worker detriment complaint. Its Costs Judgment, sent on 3 December 2014, ordered the claimant to pay £15,000 in costs.