Aston v The Martlet Group Ltd

Case details

Case citations

[2019] UKEAT 0274_18_2105 · [2019] ICR 1417 · [2019] WLR(D) 381

Court

Employment Appeal Tribunal

Judgment date

21 May 2019

Judgment text

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Subjects

Employment discrimination Disability discrimination Victimisation and detriment

Keywords

Equality Act 2010 section 15 section 27 section 108 judicial‑proceedings immunity issue estoppel remittal proportionality victimisation reasonable adjustment

Outcome

appeal allowed in part

Judicial consideration

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Summary

Victimisation for conduct connected to litigation may include continuing with proceedings, but evidence given under oath in tribunal proceedings attracts judicial‑proceedings immunity and cannot be relied on where that immunity ousts jurisdiction. Section 108 requires conduct by an ex‑employer to arise out of and be closely connected to the former relationship; mere capacity as ex‑employer or a but‑for link will not suffice. Findings made at a preliminary hearing bind later proceedings only if they were necessary to the earlier decision. For section 15, failure to warn of dismissal or to offer a concrete choice can amount to unfavourable treatment and the tribunal must assess whether dismissal was a proportionate means of achieving a legitimate aim.

Factual background

The claimant was long‑term absent with depression. Email exchanges in May 2016 included an offer of £4,000 described as a goodwill payment. A preliminary hearing in August 2017 found the effective date of termination and extended time for discrimination claims. After the preliminary hearing the claimant amended to add a victimisation claim based on evidence given at that hearing and subsequent non‑payment. At a full merits hearing the ET dismissed all discrimination and victimisation claims. The claimant appealed on grounds including misuse of the wrong legal test for victimisation, estoppel from preliminary findings, and errors on section 15 (discrimination arising from disability). The central issues were (a) whether the victimisation claim could rely on evidence given at the PH in light of judicial‑proceedings immunity and section 108, (b) whether the ET was bound by paragraph 6 findings from the PH, and (c) whether the ET erred on unfavourable treatment and proportionality under section 15.

Held

(1) The appeal is allowed in part. The ET applied the wrong legal test to the victimisation complaint, but that complaint relied on evidence given in open evidence at the 11 August 2017 preliminary hearing. That material is covered by judicial‑proceedings immunity and, on the facts and statutory scope of section 108, the ET lacked jurisdiction to admit it for the victimisation claim. The victimisation complaint is therefore dismissed (see paras [64]–[66]; [73]–[79]; [98]–[108]). (2) The ET was wrong to treat findings in paragraph 6 of the August 2017 preliminary hearing as binding at the merits hearing where those findings were not shown to have been necessary to the PH decision. Issue estoppel did not apply and the merits panel should not have precluded re‑examination of those factual matters (see paras [116]–[136]). (3) The ET erred in law in concluding that not warning the employee in the 14 April 2016 meeting that refusal of a revised post could lead to dismissal was not unfavourable treatment for section 15 purposes. Failure to provide a real choice can constitute disadvantage and thus unfavourable treatment requiring justification (see paras [138]–[147]; authorities cited re Williams and the Code). The ET’s conclusion on this point cannot stand and must be remitted. (4) The ET failed to determine whether the dismissal was a proportionate means of achieving a legitimate aim under section 15(1)(b). That proportionality assessment is an objective enquiry and the ET’s silence on the point was an error requiring remission (see paras [151]–[160]; discussion of Grosset). (5) Orders: the ET’s dismissal of the victimisation claim stands. The ET’s dismissal of the identified section 15 complaints (issues (e), (f) and (k) in the amended grounds) is quashed and those matters are remitted for fresh consideration by a differently constituted tribunal. Costs and ancillary directions were left to the tribunal as appropriate (see paras [162]–[165]).

Appellate history

Employment Appeal Tribunal: Appeal heard and decision promulgated, allowing parts of the appeal and remitting specified issues to a differently constituted Employment Tribunal (21 May 2019).
Employment Tribunal (London South): Preliminary hearing (11 Aug 2017) reserved decision on EDT and extension of time; full merits hearing decision dismissing discrimination and victimisation claims (decision promulgated 3 Sep 2018).

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