Oladipo v Lush Retail Ltd

For a victimisation claim, an Employment Tribunal must make clear findings on whether each alleged discriminator knew or believed that the claimant had done, or might do, a protected act under Equality Act 2010, section 27. It must engage with material evidence bearing on that issue and explain its approach to the absence of an expected material witness.

A finding that there was a non-victimisation reason for dismissal will not cure unclear or incomplete reasoning on knowledge, inferences and causation. Where those omissions prevent proper appellate review, the victimisation issue should be reheard, notwithstanding evidence capable of supporting a non-discriminatory reason for dismissal.

The claimant was dismissed after five months' employment by the respondent. She alleged that the dismissal victimised her for complaints of race discrimination made during and after a spa-therapist training course.

The Employment Tribunal dismissed claims for direct race discrimination and victimisation. It held that the dismissal was caused solely by the claimant's conduct towards colleagues. The direct-race-discrimination decision was not challenged.

On appeal, the claimant challenged only the victimisation decision. The central issue was whether the Tribunal had adequately addressed the evidence, the possible inferences from absent witnesses, the decision-makers' knowledge or belief of protected acts, and causation.

1. Appeal allowed on the victimisation complaint. The Employment Tribunal's dismissal of that complaint was set aside and remitted to a freshly constituted Tribunal for rehearing. The perversity ground was rejected.

2. Victimisation under Equality Act 2010, section 27 requires the detriment to be because the claimant did a protected act, or because the alleged discriminator believed that the claimant had done, or might do, such an act. The Tribunal had accurately directed itself on that requirement, but had not made clear findings on whether either dismissing manager knew, believed or suspected that the claimant had raised, or might raise, race-discrimination concerns.

3. The omission was material. One of the dismissing managers had not given evidence, despite being a senior decision-maker, and the Tribunal had no evidential basis for finding that an earlier text complaint had not been passed on. Its statement that no uncalled witness had necessary and relevant evidence was opaque. The Tribunal had to address whether an adverse inference was appropriate and explain its conclusion.

4. The Tribunal also failed to engage adequately with evidence that a dismissing manager knew of the claimant's concerns. Its treatment of the second alleged protected act overlooked the statutory relevance of the decision-maker's belief that a protected act had been, or might be, done. The finding that a later telephone complaint had resolved the matter did not answer the causation issue.

5. The evidence of inappropriate conduct towards colleagues was capable of providing a substantial non-victimisation explanation for dismissal. Nevertheless, the deficiencies in the findings and reasoning meant that the alternative conclusion on causation could not safely stand. A more forensic analysis of the evidence and indicators was required. On remittal, the Tribunal could also consider whether objectionable features in the manner of a protected act were separable from the act itself.

6. A fresh Tribunal was appropriate. The issue was discrete, the hearing should be short, time had passed, and a fresh panel was the preferable course.

• Employment Appeal Tribunal: Allowed the appeal against the dismissal of the victimisation complaint and remitted it to a fresh Employment Tribunal. The direct-race-discrimination decision was not challenged.
• Employment Tribunal (London Central): On 17 May 2017, dismissed the claimant's claims for direct race discrimination and victimisation.