Citizens Advice Merton and Lambeth Ltd v P Mefful

The Employment Appeal Tribunal allowed the respondent employer's appeal in part. The EAT upheld the tribunal's core factual findings that the respondent's interim chief executive, Mr Davidson, had decided by 19 March 2012 that the claimant would be dismissed, and that the Employment Tribunal was entitled to treat later acts as implementation rather than fresh decision-making. However the tribunal erred by relying on events that post-dated 19 March 2012 when analysing the reason for dismissal in relation to direct disability discrimination (Equality Act 2010, section 13) and discrimination arising from disability (section 15). The tribunal further failed to address the section 15(1)(b) justification defence and did not adequately explain its reasoning on the victimisation (section 27) complaints.

The net result was that findings that the dismissal decision had been taken on 19 March 2012 and that the claimant had been unfairly dismissed were left intact, but the conclusions on sections 13 and 15 were set aside and remitted to the tribunal for reconsideration on the narrow points identified. The tribunal may also need to revisit victimisation depending on its approach on remittal.

Background and procedural history:

• The claimant was employed from 2004 until dismissal in August 2012. He brought Employment Tribunal claims for unfair dismissal (section 98 ERA 1996), automatic unfair dismissal for protected disclosure (section 103A ERA 1996), direct disability discrimination (section 13 Equality Act 2010), discrimination arising from disability (section 15 Equality Act 2010) and victimisation (section 27 Equality Act 2010).
• There were three prior appeals before this tribunal: a preliminary finding on disability was remitted for re-hearing, an application to add an individually named respondent was refused and that case-management refusal was unsuccessfully appealed, and a third appeal (heard by HHJ Eady QC on 21 June 2019) allowed remittal to the tribunal to determine the real reason for dismissal in light of the statutory redundancy definition (section 139 ERA 1996).
• The substantive tribunal(s) (2017 and on remittal in January 2020) found the claimant to be disabled, concluded the dismissal was unfair and identified Mr Davidson as having decided by 19 March 2012 that the claimant would not remain in post. The tribunal found the claimant had been dismissed both because of disability (s.13 and s.15) and, alternatively, because of his protected grievance/ disclosure.

Issues framed:

• Who made the dismissal decision and when?
• What was the real reason for dismissal: redundancy, capability/lack of engagement, disability-related absence, or a protected act?
• Whether findings of discrimination under section 13 and section 15 were sustainable given the timing of the decision and knowledge of disability.
• Whether the tribunal properly applied causation and the section 15(1)(b) justification defence, and whether victimisation was adequately reasoned.

Court's reasoning and disposition:

• The EAT concluded the tribunal was entitled to find Mr Davidson had decided no later than 19 March 2012 that the claimant would be dismissed and that subsequent acts were implementation. That factual finding was not perverse.
• However, the tribunal erred in relying on events after 19 March 2012 (in particular the claimant's sickness absence from April to July 2012) to conclude the dismissal was "because of" disability for the purposes of section 13 and section 15. The tribunal conflated consequences of disability (absence) with disability as the operative cause for direct discrimination and failed to apply the correct legal tests.
• The tribunal also failed to address the section 15(1)(b) justification question (whether the dismissal was a proportionate means of achieving a legitimate aim) and did not adequately explain the basis for its victimisation finding, requiring remittal on the narrow identified issues.

Relief: The appeal was allowed in part: findings of liability under sections 13 and 15 were set aside and remitted to the tribunal for reconsideration on the limited issues identified; the tribunal may need to revisit victimisation depending on outcome. The tribunal's findings as to the date and maker of the dismissal decision and unfair dismissal were upheld.

Appeal allowed in part. The EAT upheld the tribunal's factual finding that Mr Davidson had decided by 19 March 2012 that the claimant would be dismissed and that subsequent acts were implementation, but concluded the tribunal erred in relying on events after that date to find direct disability discrimination (section 13) and discrimination arising from disability (section 15). The tribunal also failed to address the section 15(1)(b) justification defence and did not adequately explain its victimisation reasoning. The findings on sections 13 and 15 were set aside and remitted to the Employment Tribunal for reconsideration on the narrow points identified; victimisation may also require reconsideration depending on the tribunal's conclusions on remittal.

The case has an extensive history. The claimant first appealed a preliminary finding on disability and the case was remitted for rehearing. A case-management refusal to add an individual respondent was unsuccessfully appealed. After a full merits hearing (October 2017) the claimant's third appeal was heard by HHJ Eady QC on 21 June 2019 and was allowed, with remittal to the Employment Tribunal to determine the real reason for dismissal. This decision is the respondent's appeal to the Employment Appeal Tribunal resulting in [2022] EAT 11.