Leeds Teaching Hospitals NHS Trust v Dearing & Anor

For victimisation under section 27 of the Equality Act 2010, the protected act must be the conscious or subconscious reason why the relevant decision-maker subjected the claimant to detriment. It is insufficient that the protected act forms a significant part of the general causal context or influences others within the employer.

A protected act need not be the sole reason. It must, however, be a significant and non-trivial influence on the decision-maker. A tribunal must explain its findings on detriment and causation, including the primary facts said to shift the burden of proof. Separate victimising statements made because of protected acts may found liability even if an earlier similar detriment was not claimed.

The Claimants, switchboard operators, had previously brought Employment Tribunal proceedings which constituted protected acts. After long-term sickness absence, they were told that they could not return to the switchboard and would be redeployed. They also complained of statements made by two managers during a grievance and of the failure to tell them that a co-worker had been reinstated.

The Leeds Employment Tribunal upheld all three victimisation complaints under section 27 of the Equality Act 2010. The Trust appealed, contending that the Tribunal had not properly identified the decision-maker’s reason for the redeployment decision, had erred regarding the grievance statements, and had inadequately reasoned its findings on detriment and causation concerning the omitted information.

1. Appeal allowed in part. The redeployment and reinstatement-information findings were remitted. The appeal against liability for the grievance statements was dismissed.

2. On redeployment, the relevant decision-maker was Mrs McGinnes. The Employment Tribunal had permissibly criticised her failure to explore mediation, her uncritical acceptance of the managers’ position, and her response to occupational-health evidence. Those findings might have supported an inference that the protected act was a significant motivating influence. The Tribunal did not, however, make that finding.

   Its reasoning instead treated the protected act as part of the causative context and approached the employer’s decision on a composite basis. It had to determine whether the protected act was Mrs McGinnes’s conscious or subconscious reason for deciding on redeployment, rather than an ill-informed attempt to resolve workplace dysfunction and protect service delivery.

3. On the grievance statements, the Employment Tribunal found that the two managers said what they did because of the earlier proceedings. That was a finding of victimisation in the content of their statements. The Trust accepted vicarious liability and could not avoid it because the Claimants had not claimed in respect of earlier similar expressions of the managers’ views.

4. On the failure to disclose the co-worker’s reinstatement, the Employment Tribunal did not adequately identify the detriment. It had to distinguish between detriment caused by a risk of encountering the co-worker, despite her not having returned to the workplace, and detriment caused by the later loss of trust and confidence. The latter also required a finding as to when detriment arose. Its shifting-burden reasoning did not identify the primary facts which shifted the burden.

5. The limited issues were remitted to the same Employment Tribunal. Its detailed, substantially unchallenged findings and knowledge of the related proceedings made that course proportionate.

• Employment Appeal Tribunal: allowed the Trust’s appeal on the redeployment and reinstatement-information issues, dismissed it on the grievance-statements issue, and remitted the two successful grounds to the same Employment Tribunal.
• Employment Tribunal, Leeds: reserved judgment sent on 7 April 2016 upheld three victimisation complaints under section 27 of the Equality Act 2010 and dismissed other complaints.