Sally Nailard v Unite the Union

An Employment Tribunal does not err merely because it does not refer to every item of evidence or submission. Where it has directed itself correctly and has assessed the alleged discriminator’s reasons, it may decline to infer conscious or subconscious discrimination on the evidence.

Assessment of compensation is fact-sensitive and may be broad-brush. Later employment does not automatically end loss, but it may break causation where the tribunal has considered the claimant’s individual circumstances and finds that the later employment was better paid, supportive and ended for unconnected reasons. A Polkey reduction may reflect admitted misconduct discovered only after resignation; the tribunal need not assess the chance that it would have been discovered.

An unless order for unredacted medical disclosure may be proportionate where disclosure is necessary to resolve disputed causation and privacy is protected by a confidentiality ring.

The appellant had succeeded before the Employment Tribunal in claims arising from sex discrimination and harassment by some of the respondent’s officials. She brought three appeals.

The first challenged the Tribunal’s rejection of allegations that another official’s decision to transfer her was discriminatory. The second and third challenged remedy findings, including the duration of loss, the effect of later employment with Network Rail, and a 30% Polkey reduction for misconduct.

The remaining appeals challenged an unless order requiring unredacted medical records, and the subsequent strike-out of the appellant’s personal injury claim for non-compliance. The central questions were whether the Tribunal had erred in law or acted unfairly in making those findings and orders.

1. All three appeals were dismissed. The Tribunal had correctly approached the burden of proof under Equality Act 2010, section 136. It was not required to rehearse every evidential matter. It was plainly alive to subconscious discrimination, had drawn such inferences against other officials where appropriate, and adequately explained why it did not do so in respect of Mr Kavanagh. Its acceptance that concern about republication of television footage was the genuine reason for the transfer was not undermined by its failure to share or understand the level of that concern.

2. The remedy findings were open to the Tribunal. Its January 2017 cut-off date was not arbitrary: by then the appellant had obtained a better-paid role with Network Rail. The Tribunal could take account of her earlier unhappiness with the respondent, the importance she placed on work location, and her actual subsequent employment. There was no procedural unfairness because the respondent’s position that she would not have remained in the role until retirement had been identified and evidence had been adduced.

3. The Tribunal did not treat subsequent employment as automatically terminating loss. It considered the appellant’s health, the flexibility and support given by Network Rail, her successful performance, and her reason for resigning to take a more local job. It was entitled to find that the new employment broke the chain of causation. The challenge to the timing of the medical evidence was in substance an out-of-time challenge to earlier case-management directions.

4. The 30% Polkey reduction was permissible. It concerned the employer’s likely response to admitted misconduct if known, rather than contributory fault. No separate inquiry into the chance of discovery was required. The Tribunal had recognised the limited disciplinary evidence, and could reflect that limitation in the size of the reduction.

5. The disclosure order was clear, necessary and proportionate. Unredacted medical records were material to disputed psychiatric causation, while the confidentiality ring protected private-life interests. The appellant had consciously failed to comply with an earlier specific disclosure order. Partial compliance with the subsequent unless order was insufficient, and the Tribunal was entitled to refuse relief and strike out the personal injury claim without a further hearing.

• Employment Appeal Tribunal: all three appeals from Employment Tribunal decisions were dismissed.
• Employment Tribunal: upheld parts of the appellant’s discrimination and harassment claims; made remedy findings, an unless disclosure order, and later struck out the personal injury claim for non-compliance. No neutral citation for the Employment Tribunal decisions was stated.