Citizens Advice Merton and Lambeth Ltd v P Mefful

An Employment Tribunal may find that an earlier decision-maker made a dismissal decision which was later implemented by others. It must, however, assess the alleged discriminatory reason by reference to the facts and motivations operative when that decision was made. Later sickness absence and later disability-related matters cannot establish causation in an earlier decision without supporting findings.

Direct discrimination under section 13 is not established merely because treatment was influenced by a consequence of disability. That analysis ordinarily concerns section 15. A section 15 claim also requires determination of the statutory justification defence. For victimisation, a protected act need not be the principal reason, but it must have had a significant influence on the detriment.

The claimant, a specialist service manager, was dismissed ostensibly for redundancy. He brought claims for ordinary and automatically unfair dismissal, direct disability discrimination, discrimination arising from disability, and victimisation. He relied on a grievance alleging bullying and sexual harassment as both a protected disclosure and a protected act.

Following an earlier EAT appeal by the claimant, the Employment Tribunal was required to reconsider the real reason for dismissal. It found that the interim chief executive, Mr Davidson, had decided by 19 March 2012 that the claimant would be dismissed. It held that the principal reason was perceived lack of capability and engagement, but also upheld the disability claims and made an alternative finding concerning the grievance.

The employer appealed. The central issues were whether the Tribunal could make those findings on the evidence, and whether its analyses of disability discrimination, protected disclosure dismissal and victimisation were legally sustainable.

1. Appeal allowed in part. The Tribunal was entitled to find that Mr Davidson made the operative dismissal decision by 19 March 2012. Although later letters were signed by others after he had left, the Tribunal could find that they merely implemented his settled strategy. Its findings on the decision-maker and on the pre-19 March evidence of perceived lack of capability and engagement were not perverse.

2. The Tribunal nevertheless erred in upholding direct disability discrimination and discrimination arising from disability. Its findings supporting those conclusions relied upon events from April to July 2012, including sickness absence, which occurred after the decision to dismiss had been made. There was no finding connecting the pre-19 March non-engagement and performance concerns to disability. The findings under sections 13 and 15 of the Equality Act 2010 were therefore set aside.

3. Further, the Tribunal had conflated disability with its consequences in its section 13 analysis. Treatment because of disability-related absence may engage section 15, but does not without more establish direct discrimination. If section 15 were otherwise in issue, the Tribunal had also failed to decide whether dismissal was a proportionate means of achieving a legitimate aim under section 15(1)(b).

4. The protected disclosure claim could not succeed. Under section 103A of the Employment Rights Act 1996, the protected disclosure had to be the reason or principal reason for dismissal. That was irreconcilable with the Tribunal's upheld finding that the primary reason was perceived lack of capability and engagement.

5. The Tribunal's alternative victimisation finding did not sufficiently address causation. A protected act need not be the sole or principal reason for dismissal, but must significantly influence it. Victimisation may be reconsidered on remission if it becomes material. The case was remitted to the same Tribunal on the narrow issues identified.

• Employment Appeal Tribunal: appeal allowed in part in this judgment, [2022] EAT 11. The findings under sections 13 and 15 were set aside and the case was remitted to the same Tribunal on limited issues.
• Employment Tribunal: on remission after the claimant's earlier appeal, it found that the claimant's dismissal was unfair and upheld direct disability discrimination and discrimination arising from disability. It made alternative findings concerning victimisation and protected disclosure dismissal.
• Employment Appeal Tribunal: an earlier appeal by the claimant was allowed, with remission to determine the real reason for dismissal, the decision-maker, the timing of the decision and the relevance of the statutory definition of redundancy.