G Kalu & Anor v University Hospitals Sussex NHS Foundation Trust (formerly Brighton and Sussex University Hospitals NHS Trust)

The Employment Appeal Tribunal reviewed an employment tribunal's dismissal of multiple complaints including direct race discrimination, victimisation under section 27 of the Equality Act 2010 and detriment/unfair dismissal for protected disclosures under the Employment Rights Act 1996. The tribunal had held that a January 2015 collective grievance was not a protected disclosure or protected act because it was false and made in bad faith under section 27(3) Equality Act 2010, and it rejected victimisation complaints relating to an external investigator's report and subsequent disciplinary processes. The EAT held (i) the respondent's pleadings as a whole put bad faith on notice, so no detailed further pleading was required; but (ii) it was unfair for the tribunal to make a formal finding that the claimants had acted in bad faith in relation to the January grievance because the judge prevented the respondent from putting that specific allegation to the claimants in cross-examination; and (iii) the tribunal did not err in law in rejecting the victimisation complaints about the investigator's report — its reasoning was Meek-compliant and not perverse, and the separability analysis (that features of how the grievance was presented, rather than its substantive content, motivated adverse treatment) was permissible. The employment tribunal's decision therefore largely stands, but the specific bad-faith finding about the January 2015 grievance cannot be sustained.

Background and parties: The two claimants were long-serving consultant obstetricians and gynaecologists and members of a BME network. A colleague, Ms Burns, raised grievances about being outed and treated homophobically. The claimants joined an eight-member collective grievance about aspects of Ms Burns' grievance. An external barrister (Ms Hill QC) was instructed to investigate a number of linked grievances under the Trust's Dignity at Work procedure. The claimants refused to co-operate with that investigation and later declined to participate in disciplinary and appeal hearings. They were dismissed for conduct following disciplinary processes and appealed to the employment tribunal which largely dismissed their claims, save that it found one procedural failing rendering the dismissals unfair but awarded no compensation after Polkey and contributory conduct reductions.

Nature of the claims and relief sought: The claimants pursued complaints of direct race discrimination (Equality Act 2010 s.13), victimisation for doing protected acts (s.27 Equality Act 2010) and detriment/unfair dismissal for making protected disclosures (Employment Rights Act 1996 ss.43A–43H, s.47B, s.103A), plus ordinary unfair dismissal and wrongful dismissal. Remedies sought included declarations and compensation for discrimination, victimisation, detriment and unfair dismissal. (If specific remedies sought are not set out in the judgment: Not stated in the judgment.)

Procedural history: The matters were heard at a CVP employment tribunal in 2020 (EJ Khalil and others). The tribunal gave a reserved decision dismissing the main substantive complaints and awarding no compensation because of Polkey/contributory conduct reductions. The claimants appealed to the Employment Appeal Tribunal, which heard argument and reserved judgment.

Issues before the EAT: (i) whether the tribunal was entitled to find the January 2015 collective grievance was not a protected act/disclosure because it was false and made in bad faith, where the bad-faith point had not been clearly put in cross-examination; (ii) whether the tribunal erred in holding that the external investigator's report and related processes did not amount to victimisation, including whether that conclusion was Meek-compliant, perverse, or wrongly reliant on analogy with Pasab/Jhoots or on separability principles (as reviewed in Kong); and (iii) whether any procedural irregularity required remission of the whole case.

Reasoning and conclusions: The EAT found that the respondent’s pleading, read as a whole, did sufficiently put a bad-faith case on notice. However, because the tribunal had prevented the respondent from putting the specific allegation of bad faith to the claimants in cross-examination, it was unfair for the tribunal to make a formal finding of bad faith as to the January grievance; that specific finding therefore could not stand. Separately, the tribunal’s rejection of victimisation complaints about Ms Hill QC’s report and reasoning about causation and separability was adequately explained and lawful (Meek-compliant) and not perverse; the tribunal permissibly treated aspects of how the grievance was presented as separable from its substantive content when assessing motive. The EAT therefore upheld part of the first ground of appeal (procedural unfairness on the bad-faith finding) but rejected the second ground and dismissed the appeal overall, leaving the tribunal’s other conclusions (including the Polkey/contributory reductions to nil) intact.

This was an appeal to the Employment Appeal Tribunal. The EAT allowed part of the appeal in that it found a procedural irregularity: the tribunal should not have made a formal finding that the claimants acted in bad faith in relation to the January 2015 collective grievance because the respondent was prevented from putting that specific allegation in cross-examination, so that finding cannot stand. However, the EAT dismissed the remainder of the appeal: the tribunal did not err in rejecting the victimisation complaints concerning the external investigator's report, and the tribunal's reasoning on causation and separability was lawful and not perverse. Accordingly the employment tribunal's decision otherwise stands and the appeal was dismissed overall.

Employment tribunal (CVP hearing 2020 at London South before Employment Judge Khalil and others) — reserved judgment dismissing most claims and reducing compensation to nil by applying Polkey and contributory conduct reductions; appeal to the Employment Appeal Tribunal — [2022] EAT 168 (this judgment).