N Hepburn v Crown Prosecution Service

An Employment Tribunal decision must be read fairly and as a whole. Reasons need not address every argument or item of evidence, provided they disclose the basis of the decision sufficiently for appellate review. A tribunal may deal with overlapping alleged detriments compendiously where the decision, read as a whole, shows why each allegation failed.

In a victimisation claim, the protected act must have caused detrimental treatment. The assessment of detriment is made from the employee’s standpoint, in its context, but an employer’s reason for its conduct remains relevant to causation. A deficient structure or infelicitous wording will not establish an error of law where the tribunal’s findings show that no detriment occurred and protected acts did not cause the conduct alleged.

The claimant, a Crown Prosecution Service prosecutor, appealed the dismissal of disability-victimisation complaints under the Equality Act 2010. Her disabilities and protected acts were accepted. The appeal was limited to eleven alleged detriments involving her manager’s treatment of performance concerns, meetings, a performance dossier, and the handling and outcome of her grievance.

The Employment Tribunal made adverse credibility findings and held that there had been no victimisation. The claimant contended that it had failed to determine the individual detriments adequately, had not given sufficient reasons, and had assessed detriment from the employer’s rather than the employee’s standpoint. The central issue was whether the Tribunal’s decision disclosed an error of law in rejecting those complaints.

1. Appeal dismissed. The Employment Tribunal’s reasons were poorly structured and its approach was unsatisfactory, but its decision passed the applicable standard when read fairly and as a whole.

2. The Tribunal was not required to address every argument separately. It could deal together with alleged detriments that overlapped and depended on the same factual and credibility findings. The EAT was satisfied that the eleven allegations fell within the claimant’s pleaded particulars and that the decision identified where each had been addressed.

3. The proper analysis of victimisation would have identified, for each detriment or coherent group of detriments, the protected act, whether a detriment occurred, and whether the protected act caused it to the necessary degree. Nevertheless, the Tribunal’s findings showed that it had found no detriment. It was therefore unnecessary to decide causation. Its references to an unjustified sense of grievance were, in context, findings that the alleged treatment was not a detriment, not an extra statutory defence or a finding that protected acts were invalid.

4. The EAT also rejected the contention that the Tribunal had considered detriment solely through the employer’s perspective. It had assessed detriment substantially from the employee’s standpoint and concluded that the claimant’s perceived grievances were unjustified. Its finding that the manager reacted to unreasonable behaviour also meant that the protected acts did not cause the reactions alleged.

5. The EAT declined permission to appeal to the Court of Appeal. The proposed grounds disclosed no arguable point of law or issue of public importance.

• Employment Appeal Tribunal: appeal from the Employment Tribunal’s dismissal of the claimant’s disability-victimisation complaints under the Equality Act 2010 dismissed; permission to appeal refused.
• Employment Tribunal: dismissed the victimisation claim after a 12-day hearing. Its decision’s citation is not stated in the judgment.