Pets At Home Ltd v MacKenzie

Under section 136 of the Equality Act 2010, a tribunal must consider all the evidence when deciding whether facts establish a prima facie inference of discrimination. If the burden shifts, it must engage with the employer’s non-discriminatory explanation and material supporting it. Reasons which do not reveal that analysis are unsafe.

For constructive dismissal, an employee cannot rely on a final straw to revive an earlier repudiatory breach that has been affirmed. The tribunal must identify the alleged final straw, determine whether it materially contributed to a cumulative breach, and address affirmation separately in relation to earlier alleged breaches.

The claimant, an Assistant Manager, alleged pregnancy and maternity discrimination after she was required to undergo assessments rather than being fast-tracked for two Deputy Manager vacancies. Her free-standing discrimination claims were found out of time, but the Employment Tribunal majority treated the alleged discrimination, combined with learning that a less experienced colleague had progressed in the selection process, as a repudiatory breach of trust and confidence. It upheld her constructive unfair dismissal claim.

The employer appealed, challenging the discrimination reasoning, the alleged final straw, and the failure to consider affirmation by delay. The claimant cross-appealed an erroneous date recorded by the Tribunal.

1. Appeal and cross-appeal allowed. The cross-appeal corrected the date of the colleague’s assessment. The constructive unfair dismissal finding depended on the Tribunal majority’s discrimination findings, which could not safely stand.

2. Applying section 136 of the Equality Act 2010 and Ayodele v Citylink Ltd [2017] EWCA Civ 1913, the Tribunal had to consider all the evidence at the first stage and decide whether it supported a prima facie inference of discrimination. Its reasons did not adequately explain how the evidence concerning appraisals, feedback about people skills, training, succession plans, and maternity leave justified that inference. Some reasoning was apparently inconsistent with other Tribunal findings or lacked an identifiable evidential basis.

3. At the second stage, the Tribunal majority was entitled in principle to reject the employer’s explanation. It nevertheless had to engage with the detailed evidence advanced in support of that explanation. Its failure to do so, or to explain its analysis, was an error of law which rendered the discrimination decisions unsafe.

4. The alleged final straw required clearer findings. Learning that a colleague had been promoted, though not technically accurate at the relevant stage of the process, might potentially have been a final straw. The Tribunal had to determine whether that was the case actually advanced and explain its conclusion.

5. More fundamentally, the Tribunal considered delay only in relation to the alleged final straw. It did not decide whether the earlier alleged discriminatory breaches had been affirmed. Following Vairea v Reed Business Information Ltd UKEAT/0177/15, an affirmed breach cannot later be revived by a further final straw. The Tribunal’s omission was material.

6. The case was remitted to the same Tribunal for the requisite assessment, if practicable; otherwise, it was to be assigned to a freshly constituted Tribunal.

• Employment Appeal Tribunal: allowed the employer’s appeal and the claimant’s conceded cross-appeal; remitted the case for reconsideration.
• Employment Tribunal, Southampton: by a majority, upheld constructive unfair dismissal based on prior findings of pregnancy and maternity discrimination, while unanimously holding the free-standing discrimination claims out of time.