JJ Food Service Ltd v Mohamud

In a victimisation dismissal claim, the tribunal must decide whether the protected act itself, namely the allegation of discrimination, significantly influenced the dismissal. It is insufficient to find merely that the employee challenged a workplace policy where that challenge included other, non-protected matters.

Where an employer advances a complete non-discriminatory explanation for dismissal, adequate reasons must explain why the protected act nevertheless had the required causal influence. The reasons must enable the losing party to understand why that explanation was not determinative.

The claimant, a purchase ledger supervisor, attended work on three occasions wearing jeans contrary to the dress code. In challenging the code and its application, he alleged that women had been treated more favourably and that he was being discriminated against on grounds of sex.

He was dismissed for repeated non-compliance with the dress code and management instructions. The Employment Tribunal rejected his direct sex-discrimination claim but upheld his victimisation claim, finding that his questioning of the dress-code application was a significant contributory factor in his dismissal and the rejection of his appeal.

The employer appealed. The central issue was whether the Tribunal had correctly addressed causation and given adequate reasons for finding that the protected acts influenced dismissal.

1. Appeal allowed. The finding of victimisation was set aside and the causation issue was remitted to the same Employment Tribunal.

2. The Tribunal had to decide whether the claimant’s allegations of sex discrimination had significantly influenced the dismissal. Its finding instead concerned his questioning of the dress-code policy. Those were not necessarily the same matter, because he challenged the policy on other grounds, including inconsistent treatment between departments and an asserted lack of clarity in the handbook.

3. That distinction was material on these facts. The Tribunal could potentially have found that the manner or persistence of the claimant’s complaints, rather than their discriminatory content, led to dismissal. It therefore had to focus expressly on the protected acts and the required causal connection.

4. The Tribunal’s reasons were inadequate. They did not explain how its rejection of an alleged continuing threat to wear jeans, and evidence that the claimant persistently challenged the policy, established causation. Nor did they explain why the employer’s apparently complete explanation—three knowing breaches of the dress code, including a breach of instructions and of the claimant’s undertaking—did not account for dismissal.

5. A fresh hearing of evidence was inappropriate. Subject to the passage of time, the existing Tribunal was best placed to assess the evidence and inferences afresh. The victimisation causation issue was therefore remitted to that Tribunal, with either party free to seek a review of the remittal direction.

• Employment Appeal Tribunal: Allowed the employer’s appeal and remitted the victimisation causation issue to the same Employment Tribunal.
• Employment Tribunal, Watford: Rejected direct sex discrimination but upheld the claimant’s victimisation claim arising from dismissal.