Gallop v Newport City Council

For direct discrimination by a sole decision-maker, the material inquiry is that decision-maker’s actual knowledge, intention and motivation. Knowledge held elsewhere in the organisation cannot be imputed to the decision-maker for that purpose.

A false explanation may assist in shifting the burden of proof, but it does not invariably do so. The issue remains fact-sensitive and an innocent explanation may remain available.

An Employment Tribunal need determine the case advanced by the parties. It need not investigate allegations pleaded but unsupported by evidence. Whether conduct is a provision, criterion or practice is fact- and context-sensitive; a tentative observation that a one-off failure may not be a PCP is not a binding determination.

The Appellant had been dismissed by the Respondent in 2008. An earlier Employment Tribunal upheld his unfair-dismissal complaint but dismissed his disability-discrimination claims for want of employer knowledge. Following a successful appeal to the Court of Appeal, the disability claims were remitted for a fresh hearing before a differently constituted tribunal.

The remitted tribunal dismissed claims of direct disability discrimination and failure to make reasonable adjustments under the Disability Discrimination Act 1995. It found no evidential basis for discrimination in the dismissal or for the pleaded disciplinary-process adjustment claim.

The Appellant appealed, principally alleging an erroneous approach to the dismissing officer’s knowledge and motives, the burden of proof, and whether a single event could amount to a provision, criterion or practice.

1. Appeal dismissed. The remitted tribunal was entitled to treat the earlier tribunal’s factual finding as fixing the reason for dismissal: the colleagues’ refusal to work with the Appellant. It could nevertheless consider whether disability was an effective cause of the decision. Its focus on Mr Davison’s own intention, motive and knowledge showed that it had addressed that issue.
2. Where one person alone makes the challenged decision, direct discrimination depends on that person’s actual state of mind. The tribunal correctly concentrated on Mr Davison. It was not required, and would have erred, to impute to him the knowledge, motivation or intention of occupational-health staff or other employees. There was no evidence that he knew of the Appellant’s disability or that disability influenced his decision.
3. Bowers v William Hill did not establish a generally applicable rule of imputed knowledge. The passage relied on merely recorded an unappealed tribunal approach. Paragraph 15.5 of the Code of Practice: Employment and Occupation 2004 was practical guidance on knowledge and did not alter the direct-discrimination inquiry.
4. The burden of proof had not shifted. An explanation shown to be dishonest will often be capable of providing the required additional evidential basis, but it does not necessarily do so. Here, the accepted explanation for dismissal was non-discriminatory and the tribunal made no error in finding no prima facie case.
5. The reasonable-adjustments ground also failed. The Appellant had not supplied evidence identifying the PCP, the substantial disadvantage, or a proposed reasonable adjustment in the disciplinary process. A tribunal need not pursue a pleaded point which the party has not deployed. Its comment concerning a one-off failure and a PCP was expressly alternative and provisional. A practice may suggest repetition, but whether a provision, criterion or practice exists depends on the facts and context.

Permission to appeal against the earlier refusal to permit a further amendment was also refused, subject to an extension of time for any renewed application.

• Employment Appeal Tribunal: The appeal from the remitted tribunal was dismissed.
• Employment Tribunal (Cadney Tribunal): By a decision sent on 20 November 2014, it dismissed the remitted direct-discrimination and reasonable-adjustments claims under the Disability Discrimination Act 1995.
• Court of Appeal: The Appellant’s earlier appeal succeeded on disability discrimination. Those claims were remitted for a fresh hearing before a differently constituted tribunal.
• Employment Tribunal (Beard Tribunal): In 2010, it upheld unfair dismissal but dismissed the disability-discrimination claims because the Respondent neither knew nor ought to have known of the disability.