Eniola Onigbanjo v London Borough of Croydon

An employee on maternity leave is not treated unfavourably merely because she is not given training information where the tribunal finds that employees not on maternity leave would not have been given it either, and she had the same opportunity to arrange training.

Where a tribunal finds that a manager committed victimisation in one closely connected matter, it must adequately explain why similar acts by that manager shortly afterwards were not because of the protected act. A failure to reconcile those findings requires remittal. Findings that disciplinary action, dismissal and suspension arose from serious and independently established concerns will not be reopened on appeal merely by inviting a reassessment of the evidence.

The claimant was a trainee social worker with fibromyalgia, which was accepted to be a disability. She took maternity leave before completing her first-year training assessment. She had previously succeeded in part in proceedings concerning disability and pregnancy discrimination.

Before her proposed return, the respondent sent an out-of-date training list and later allowed her to contact the training team directly. Her manager cancelled a chair-fitting appointment, which the Employment Tribunal found was victimisation. The same manager also restricted access to the workplace and IT facilities.

After investigations into alleged housing-benefit and tenancy fraud, and concerns over information on a DBS form, the claimant was suspended and dismissed for gross misconduct. The Employment Tribunal dismissed her maternity-discrimination, unfair-dismissal and most victimisation claims. The appeal concerned training during maternity leave, the access restrictions, suspension, investigation and dismissal.

1. The appeal was allowed in part. Ground 2, concerning restrictions on workplace and IT access before suspension, was remitted to the same Employment Tribunal. The remaining grounds were dismissed.

2. The Employment Tribunal was entitled to reject the maternity-discrimination complaint concerning training. Its findings meant that staff not on maternity leave were not sent training-course details as a matter of course. The claimant had not made a general earlier request for that information, was mistakenly sent an outdated list, and was then permitted to contact the training department herself. On those findings, there was no unfavourable treatment under section 18 EqA. Section 39(2) did not require the respondent to treat her more favourably than employees who were not on maternity leave.

3. The Employment Tribunal had, however, found that Ms Langton cancelled the chair-fitting appointment because of the claimant’s protected act. It rejected Ms Langton’s explanation for that decision. It did not adequately explain how it reconciled those findings with its conclusion that Ms Langton’s closely subsequent restrictions on building and IT access were not victimisation. The Tribunal had instead accepted material involving another manager’s concerns. That deficiency could not be resolved by the Appeal Tribunal without making findings of fact. The issues were therefore remitted without any pre-judgment of their merits.

4. The Employment Tribunal’s findings that the disciplinary investigation and dismissal were unrelated to protected acts disclosed no error of law. The fraud investigation pre-dated the relevant grievance, the allegations were serious and complex, and there was no credible evidential link between protected acts and the disciplinary process. Its use of “principal reason” did not show that it had applied an erroneous sole-reason test; read fairly, it found that the protected act played no part.

5. The challenge to suspension also failed. Given the gravity of the allegations and the claimant’s work with vulnerable children, suspension on her return to work was inevitable. The Employment Tribunal was entitled to find the investigation, disciplinary process, appeal process and summary dismissal reasonable.

• Employment Appeal Tribunal: appeal allowed only on Ground 2 and remitted to the same Employment Tribunal; all other grounds dismissed.
• Employment Tribunal, London South: after a hearing in October 2019, written reasons were sent on 26 March 2020. It upheld two victimisation complaints but dismissed the claims for unfair dismissal, maternity or pregnancy discrimination, and breach of contract.