Lyfar-Cisse v Brighton And Sussex University Hospitals NHS Trust & Anor

Where a tribunal finds that an employer intervened because of a protected act, it must give coherent reasons for any separate finding that the particular means of intervention was unrelated to that act. A conclusion on causation cannot stand where it is inconsistent with, or unexplained in the light of, findings that the method adopted was intended to prevent escalation because of the claimant’s earlier discrimination proceedings.

In a victimisation claim under Equality Act 2010, the tribunal must determine both whether the conduct was a detriment and whether it was done because of the protected act.

The claimant had succeeded in a race-discrimination claim against her employer in 2007. In 2011, after she lodged a grievance against two colleagues, the second respondent, the employer’s HR Director, privately approached them and procured letters of apology drafted by him and presented as spontaneous. The employer later found that this procedure was improper.

The Employment Tribunal dismissed the claimant’s victimisation claim after a remission from an earlier Employment Appeal Tribunal decision. It found that the second respondent had decided to intervene partly because of the earlier claim, but that his particular method of intervention was not because of it. The claimant appealed that conclusion.

1. Appeal allowed. The Employment Tribunal’s conclusion that the particular way in which the second respondent intervened was unrelated to the protected act could in principle have been open to it. Its reasons did not, however, support that conclusion.

2. The Tribunal’s reasons at paragraphs 42 and 43 did not identify clearly what objective the second respondent sought to achieve by using apparently spontaneous apology letters without involving the claimant. They therefore left unexplained the asserted separation between the decision to intervene and the method adopted.

3. Those reasons were also difficult to reconcile with the finding at paragraph 38. That finding was that the matter was thought capable of escalating partly because the claimant had previously succeeded in discrimination proceedings, and that the intervention plan was designed to induce her not to pursue her grievance. Read together, the findings indicated that the method was used to avert escalation for a reason which included the protected act.

4. The Tribunal consequently erred in its approach to causation under section 27(1) of the Equality Act 2010. It had also not determined whether the conduct alleged amounted to a detriment. Both detriment and causation were remitted to a fresh Employment Tribunal, which was to decide them using the material and earlier findings already available.

• Employment Appeal Tribunal: This appeal was allowed. The issues of detriment and causation in the victimisation claim were remitted to a fresh Employment Tribunal.
• Employment Tribunal, Southampton: By a decision sent on 17 December 2015, the Tribunal dismissed the remitted victimisation claim.
• Employment Appeal Tribunal: On 22 October 2014, Simler J remitted the allegations because they had not been properly addressed by the original Tribunal.