Smith v Intelling Ltd (Disability Discrimination)

Where an Employment Tribunal can make a positive finding of fact as to an employer’s true reason for acting, the burden-shifting provisions of Equality Act 2010 do not determine the outcome. An Employment Tribunal is not required formally to refer to section 136 in its reasons.

An initially false, inconsistent or chaotically presented explanation does not prevent the Tribunal from finding, on the evidence, a non-discriminatory reason for dismissal. An appellate court should read challenged findings in their context. A finding is not perverse where there is an evidential basis for it, even if the employer’s presentation of its case was unsatisfactory.

The claimant, who was disabled by anxiety and depression, brought a disability-discrimination complaint after his employment ended in July 2017. The Employment Tribunal at Manchester found that the true reason was a reduction in headcount on the relevant campaign, rather than capability or anything arising from disability. It dismissed the section 15 complaint.

The claimant appealed. He contended that the Tribunal had failed to apply the burden of proof under section 136 of the Equality Act 2010, and that its finding about the selection process was perverse because it lacked evidential support.

1. Appeal dismissed. The Employment Tribunal’s conclusion that the dismissal was not because of something arising from disability was upheld.

2. It was unfortunate that the Tribunal did not refer expressly to section 136 of the Equality Act 2010. However, there is no formal requirement that it do so. The omission did not justify an inference that the Tribunal had overlooked the provision or its possible relevance.

3. The burden of proof provisions matter where there is uncertainty about the facts necessary to establish discrimination, particularly the employer’s reason or motivation. They have no determinative role where the Tribunal can make a positive finding on the evidence as to the true reason. An employer’s initially incorrect explanation does not prevent a properly constituted Tribunal from resolving conflicting evidence and finding the actual reason.

4. Read fairly and in context, the Tribunal found that the dismissal resulted from a redundancy situation and a need for fewer employees. The unexplained performance material was irrelevant to that finding, rather than evidence that it lacked a foundation. The evidence recorded by the Employment Judge supported the conclusion that length of service was the principal selection criterion, subject to business-critical skills and attributes.

5. The April 2017 email concerned an earlier headcount reduction, but could properly be used by analogy to explain the Tribunal’s conclusion about the later process. In any event, the findings on the true reason for dismissal and the conclusion on the section 15 complaint were sufficient to sustain the decision without the challenged finding.

• Employment Appeal Tribunal: dismissed the claimant’s appeal and upheld the dismissal of the section 15 disability-discrimination complaint.
• Employment Tribunal, Manchester: found that the claimant’s dismissal resulted from a headcount reduction and was not affected by something arising from disability.