Balson v Foray Motor Group Ltd

An appellate court should read an Employment Tribunal’s reasons fairly and as a whole, in the context of the cases advanced by the parties. Linguistic infelicities or a preference for one witness’s evidence expressed imperfectly do not establish an error of law where the Tribunal’s reasoning adequately identifies and rejects the alleged causal link.

In a claim under section 15 of the Equality Act 2010, the Tribunal may reject, on the evidence, the contention that disability symptoms adversely affected the claimant’s redundancy-selection scores. It need not express that factual conclusion in ideal language if its reasoning and conclusion remain clear on a fair reading.

The claimant, a tele-sales employee of the respondent car dealership, was selected for redundancy after scoring marginally below a comparator in two selection exercises. He had depression and contended that its symptoms, and the effects of medication, adversely affected his performance against the selection criteria.

The Employment Tribunal rejected, among other claims, his claim under section 15 of the Equality Act 2010. It preferred the respondent’s evidence that the scores resulted from a genuine objective comparative assessment, particularly in relation to timekeeping.

The claimant appealed on the sole permitted ground that the Tribunal had failed adequately to consider the effect of his disability on his work, participation in the redundancy process and the respondent’s decision-making.

1. Appeal dismissed. The Employment Tribunal’s reasons, read fairly and as a whole, disclosed no error of law. Although aspects of their language could have been clearer, the Tribunal had adequately addressed the claimant’s case that depression and its symptoms adversely affected his redundancy-selection scores.

2. The Tribunal was entitled to determine the dispute on the evidence before it. Its preference for the respondent’s evidence was properly understood as a preference for the respondent’s factual case over the claimant’s. That finding rejected the asserted causal link between the disability symptoms and the scores; it was not merely an unexplained preference for one witness.

3. The Tribunal had found that the claimant performed better than the comparator in sales and job knowledge, but was disadvantaged by timekeeping in a close assessment between valued employees. It was entitled to conclude that the selection outcome followed from a genuine and objective comparative assessment, rather than from something arising in consequence of disability within section 15 of the Equality Act 2010.

4. The judge added, obiter, that even if the appeal ground had succeeded, he would have been strongly inclined not to remit because the respondent’s justification defence appeared overwhelmingly strong. That defence was not decided.

• Employment Appeal Tribunal: Appeal dismissed: [2017] UKEAT 0288_16_3103.
• Employment Tribunal: Reserved judgment sent to the parties on 1 March 2016. It rejected, among other matters, the claimant’s claim under section 15 of the Equality Act 2010. No citation was stated.