Solomon v University of Hertfordshire & Anor

An Employment Tribunal may determine discrimination claims by making positive findings about the employer’s reasons on the evidence. It need not expressly revisit the statutory burden of proof where its reasons, read as a whole, clearly show that protected characteristics played no part. It is nevertheless good practice to explain the approach taken to the burden of proof.

For harassment, conduct cannot have the requisite proscribed effect if it was not reasonable for it to have that effect. In deciding whether litigation conduct justifies costs, a tribunal must assess whether the litigant’s choice fell outside the range of reasonable responses. It must not substitute its own preferred course.

The claimant, a former internal auditor, brought complaints of sex, race, pregnancy and maternity discrimination, victimisation and harassment against her employer and line manager. She also complained of unfair dismissal.

The Employment Tribunal at Watford dismissed the discrimination-related claims. It held that her dismissal was procedurally unfair because the chair of the disciplinary panel lacked independence, but found that the true reason for dismissal was the irretrievable breakdown of the working relationship. It made a basic award only. It later ordered the claimant to pay £20,000 in costs.

The claimant appealed both judgments. The central issues included the burden of proof, pregnancy and maternity dismissal, harassment, and whether refusal of settlement offers and withdrawal from mediation were unreasonable conduct for costs purposes.

1. Liability appeal dismissed. The EAT unanimously held that the Tribunal had made clear and supportable findings that the employer’s actions, including dismissal, were motivated by genuine concerns about performance and an irretrievable breakdown in the working relationship, not by sex, maternity, race, victimisation or harassment.

2. By a majority, Mr Hunter dissenting, the EAT held that the Tribunal’s failure expressly to explain, at the point of decision, how it applied the burden of proof did not vitiate its judgment. The Tribunal had heard the material witnesses, considered extensive contemporaneous documents and made positive findings about the employer’s motivation. Its reasons, read as a whole, showed that it found the protected characteristics had played no part. The EAT added that an express explanation of the burden approach is good practice and may be essential where the evidence leaves material factual doubt.

3. The Tribunal had sufficiently addressed automatic unfair dismissal under section 99 of the Employment Rights Act 1996. Its finding as to the reason for dismissal necessarily established that the reason or principal reason was not pregnancy, childbirth or maternity leave. Its conclusions also disposed of the alleged pregnancy and maternity discrimination under section 18 of the Equality Act 2010.

4. The Tribunal did not err in rejecting harassment. Its findings established that the conduct lacked the prohibited purpose and that it was not reasonable for the conduct to have the alleged prohibited effect. The EAT applied Pemberton v Inwood in construing section 26 of the Equality Act 2010.

5. Costs appeal allowed. The Tribunal erred by treating its own assessment of the preferable response to settlement offers as decisive. The correct question was whether the claimant’s decisions, including retaining an appeal right rather than accepting a post-judgment offer, fell outside the range of reasonable responses in her circumstances. The costs application was remitted for rehearing, with submissions invited on the constitution of the remitted Tribunal.

• Employment Appeal Tribunal: liability appeal dismissed; appeal against the costs order allowed and remitted for rehearing: [2019] UKEAT 0258_18_2910.
• Employment Tribunal, Watford: liability judgment dated 15 February 2018 dismissed the discrimination-related claims but found the dismissal procedurally unfair and awarded a basic award only. Costs judgment dated 7 November 2018 ordered the claimant to pay £20,000.