SUN MARK LTD & Ors v RAMANDEEP KAUR

For victimisation under Equality Act 2010, a false allegation is excluded from protection only if it was made in bad faith. The primary issue is whether its maker honestly believed it to be true. Findings that allegations were exaggerated, distorted or not credible may be irreconcilable with a finding of honest belief and require reconsideration.

The burden-of-proof provisions require inferences to be drawn from established facts where justified. They do not reverse the burden of proving a disputed primary fact. A tribunal faced with conflicting evidence about what was said must decide that issue on the balance of probabilities after considering all relevant evidence.

The claimant, an accounts manager, alleged that Mr Sharma sexually harassed her over several months. After complaining to Mr Ahuja and subsequently speaking by telephone to Lord Ranger, she alleged victimisation, harassment and direct sex discrimination.

The Employment Tribunal upheld the sexual-harassment claim against Mr Sharma, victimisation against Mr Ahuja, and victimisation, harassment and discrimination against Lord Ranger. It found that the claimant had exaggerated and distorted some allegations, but that her allegations were made in good faith. It also resolved a factual dispute about the meeting with Mr Ahuja by applying the burden of proof under Equality Act 2010.

The employers and individuals appealed. The central issues were the effect of bad faith on the alleged protected acts, the correct use of the statutory burden of proof, and whether Lord Ranger's conduct was caused by the complaints themselves rather than their manner.

1. Appeal allowed in part. The findings of victimisation against Mr Ahuja and Lord Ranger were set aside and remitted to the original Employment Tribunal. The findings that Lord Ranger harassed and directly discriminated against the claimant were upheld.

2. Under section 27(3) of the Equality Act 2010, the primary question concerning a false allegation is whether its maker honestly believed it to be true. The Tribunal's conclusion that all allegations were made in good faith could not stand with its findings that the claimant had exaggerated and distorted matters, that parts of her account were not credible, and that some allegations concerning 28 September had not occurred. The true basic allegation of persistent sexual harassment nevertheless remained a protected act regardless of bad faith. The Tribunal had to reconsider the scope of any protected acts and whether they caused the alleged detriments.

3. The Tribunal had misapplied sections 136(2) and (3). Those provisions govern inferences drawn from established facts, commonly as to an alleged discriminator's state of mind. They do not reverse the burden of proving every element of a discrimination claim. The claimant's email recording what Mr Ahuja allegedly said, and his failure to reply, could not by themselves justify an inference that he had said it. The Tribunal had to determine the disputed words on the balance of probabilities by evaluating the parties' evidence, credibility, the contemporaneous email and the absence of a reply.

4. The Tribunal also had to address the contention, exemplified by Martin v Devonshire Solicitors [2011] ICR 352, that Lord Ranger reacted to the manner in which the allegations were made rather than to their making. That issue was material to causation for victimisation and could not be answered merely by observing that he ought to have ended the call.

5. The challenge to the findings of harassment and direct sex discrimination failed. In the context of the call, the recording, and the statements identified by the Tribunal, those findings were open to it and adequately reasoned. The appeal on that issue was an impermissible attempt to re-argue the facts.

The remitted issues were the protected acts relied on, what Mr Ahuja said at the meeting, and whether Mr Ahuja's and Lord Ranger's conduct was because of protected acts. All other findings of fact were to stand.

• Employment Appeal Tribunal: Appeal allowed in part in [2022] EAT 32. The victimisation findings were set aside and remitted; the findings of harassment and direct discrimination against Lord Ranger were upheld.
• Employment Appeal Tribunal (preliminary hearing): Mr Sharma's appeal was dismissed. The appeals of Mr Ahuja, Lord Ranger and the associated company appeals were permitted to proceed to a full hearing.
• Employment Tribunal, Watford: Judgment promulgated on 27 November 2020. It upheld sexual-harassment claims against Mr Sharma, victimisation against Mr Ahuja, and victimisation, harassment and discrimination against Lord Ranger.