H Fullah v The Medical Research Council & Ors

A suspension may be a detriment for victimisation purposes where the employee reasonably regards it as such. The employee need not prove medical, physical or economic consequences.

Where dismissal or another detriment follows protected acts, the tribunal must decide whether the protected acts were a substantial part of the reason. An employer may rely on features or consequences of a complaint only if they are properly and genuinely separable from making the complaint itself. A breakdown in working relations does not answer that question without analysis of its cause. The approach does not require separable-feature cases to be treated as exceptional.

The claimant, a computer officer employed by the Medical Research Council, had brought employment tribunal proceedings alleging race discrimination, disability discrimination and victimisation. After the hearing of his second claim, the respondent suspended him while an external consultant investigated whether workplace relationships had irretrievably broken down. He was subsequently dismissed on that basis.

The Huntingdon Employment Tribunal rejected claims that the suspension and dismissal amounted to victimisation. It found that suspension on full pay was a neutral act and that the dismissal resulted from an irreparable breakdown in working relationships, rather than protected acts. The claimant appealed the findings on detriment and causation. The central issue was whether the protected acts had materially influenced the suspension and dismissal, or whether the asserted breakdown was properly separable from those acts.

1. Appeal allowed. The Employment Tribunal erred in holding that the suspension was not a detriment. Under Shamoon, the question was whether a reasonable worker might regard the treatment as detrimental in all the circumstances. The claimant had said that suspension affected him and prevented access to IT systems. It was reasonable for him to regard suspension as a detriment. Medical evidence or proof of a physical, economic or health consequence was unnecessary.

2. The tribunal also erred in its approach to causation under section 27 of the Equality Act 2010. The relevant question was whether the protected acts were wholly or substantially part of the reason for suspension or dismissal. An employer can act because of a feature or consequence of a complaint, rather than the complaint itself, only where that feature is properly and genuinely separable from making the complaint: Martin v Devonshires Solicitors, [2010] UKEAT/0086/10.

3. The tribunal's finding that the working relationship had irretrievably broken down did not resolve whether that breakdown was substantially caused by the claimant's proceedings, especially as the suspension and dismissal followed immediately after their rejection. It needed expressly to analyse whether the stated reasons, including the manner and consequences of the proceedings, were separable from the protected acts. Its reasons did not show that it had done so.

4. There is no additional requirement that cases involving genuinely separable features must be exceptional. The victimisation issues concerning both suspension and dismissal were remitted to the same tribunal for reconsideration in light of the relevant authorities. The unfair-dismissal determination was not appealed.

• Employment Appeal Tribunal: Allowed the appeal and remitted the victimisation issues concerning suspension and dismissal.
• Employment Tribunal, Huntingdon: Judgment sent on 28 August 2019. It dismissed the claims of victimisation and unfair dismissal.