Cousins v The Forum@greenwich

Where alleged discriminatory conduct or information precedes a later employment decision, the tribunal must determine what really informed that decision. Discrimination or victimisation does not require an exact correspondence between an earlier actor’s intended outcome and the outcome achieved. However, a causative link may be broken where an independent decision-maker disagrees with the earlier actor and reaches a decision for non-discriminatory reasons.

An Employment Tribunal’s reasons must be read as a whole. A failure to repeat the distinct statutory test for victimisation is not material where its findings clearly establish that the treatment was for a reason other than the protected act.

The claimant, a black woman of Afro-Caribbean origin, was employed by the respondent charity as General Manager. She had a poor relationship with its Chair of Trustees, who made an inappropriate comment concerning black women and prepared a critical report recommending her dismissal.

The Board instead extended her probation, following another trustee’s advocacy. She was later dismissed for failing to provide required management reports, and her internal appeal was rejected. The London (South) Employment Tribunal dismissed claims for direct race and sex discrimination and victimisation.

The claimant appealed, contending that the Chair’s discriminatory conduct had materially influenced the probation extension, dismissal and appeal decision, and that the Tribunal had erred in its treatment of detriment, the burden of proof and victimisation.

1. Appeal dismissed. Reading the Employment Tribunal’s reasons as a whole, it had made findings open to it that the Chair’s views did not cause the extension of probation, the dismissal, or the rejection of the internal appeal.

2. An exact correlation between an earlier actor’s intention and the eventual outcome is not required for discrimination or victimisation. The material inquiry was whether that actor had caused or materially informed the decision complained of. Here, the Tribunal found a break in causation: another trustee disagreed with the Chair and persuaded the Board to extend probation, against the background of performance concerns held by other trustees.

3. Applying the guidance in Reynolds v CLFIS (UK) Ltd [2015] ICR 1010, the Tribunal was entitled to examine what really informed the impugned decision. It permissibly found that the Chair’s report was tainted, but that it did not inform the Board’s decision to extend probation.

4. The same conclusion answered the challenges to dismissal and the internal appeal. The Tribunal had clearly found that the trustee deciding dismissal, and the trustee deciding the appeal, acted independently of the Chair and for non-discriminatory performance reasons.

5. The Tribunal’s reasoning on victimisation could have referred more fully to the statutory test in Equality Act 2010. Nonetheless, it was clear from the findings as a whole that the relevant actions were not taken because of the claimant’s grievance or other protected act. The Tribunal had understood the distinct statutory tests, and its failure to restate section 27 in its conclusions did not vitiate its decision.

6. Although the Tribunal’s judgment was not a model of its kind, its reasons were adequate and enabled the parties to understand why the claims failed.

• Employment Appeal Tribunal: appeal dismissed: [2016] UKEAT 0183_15_0102.
• London (South) Employment Tribunal: dismissed the claimant’s claims for race and sex discrimination and victimisation. The judgment was sent to the parties on 19 March 2015.