Field v Steve Pye and Co & Ors

The Employment Appeal Tribunal allowed the claimant's appeal and remitted the case to a differently constituted employment tribunal. The EAT found that the employment tribunal erred in law by failing properly to consider the burden of proof under section 136 of the Equality Act 2010 and by failing to engage adequately with evidence capable of shifting that burden. The tribunal's treatment of claims for discrimination because of something arising in consequence of disability, victimisation, failure to make reasonable adjustments and constructive dismissal was unsafe because it did not explain why it had not applied the two-stage approach where the primary facts could support inferences of discrimination.

Key legal principles: the correct application of the burden of proof in discrimination claims under s.136 Equality Act 2010 and the appropriate use of the Igen two-stage approach; the requirement to consider whether facts relied upon could allow an inference of discrimination before proceeding to the "reason why" question; and the legal tests for reasonable adjustments and for repudiatory conduct leading to constructive dismissal.

Background and parties: The claimant was employed by the first respondent as an accounts assistant from April 2016 and had disabilities (arthritis, carpal tunnel syndrome and ankylosing spondylitis). She sought flexible working and reasonable adjustments including working from home as necessary and modified IT equipment. Her requests were initially refused. Events included sickness absence after a family emergency and a fall on holiday, correspondence raising performance/attendance concerns, an informal welfare visit that included an offer of money to leave, and a grievance raising those matters.

Procedural posture: The employment tribunal (Employment Judge Postle with members) heard the claims in July–August 2020 and dismissed them in a judgment sent 12 January 2021. The claimant appealed to the Employment Appeal Tribunal; the appeal was sealed 16 February 2021 and HHJ Auerbach permitted specified grounds to proceed by order sealed 30 June 2021. This judgment is the EAT's determination of that appeal.

Nature of the claims and relief sought: The claimant advanced claims of discrimination because of something arising in consequence of disability, direct disability discrimination, victimisation, failure to make reasonable adjustments, unfair/constructive dismissal, and detriments for exercising rights under sections 57A and 80F Employment Rights Act 1996. She sought a rehearing/remittal for proper consideration of her claims.

Issues framed: (i) whether the employment tribunal erred in applying the burden of proof under s.136 Equality Act 2010 and failing to consider whether facts could shift the burden to the respondents; (ii) whether the tribunal's findings that absences and attendance problems were unrelated to disability were inconsistent with respondents' concessions; (iii) whether the tribunal failed to properly address victimisation and detriment claims; (iv) whether the tribunal erred in dismissing a failure to make reasonable adjustments claim that had crystallised prior to the respondent's later offer of adjustments; and (v) whether the tribunal misapplied the law on repudiatory conduct and affirmation in relation to constructive dismissal.

Court's reasoning and disposition: The EAT analysed established authorities on burden of proof (including Hewage, Igen and Nagarajan) and emphasised that where there is evidence that could support an inference of discrimination the tribunal must consider whether the s.136 burden shifts. The EAT found that the employment tribunal had not addressed the claimant's submissions as to primary facts capable of shifting the burden and had not explained why it moved straight to considering the respondents' non-discriminatory explanations. The EAT held that this failure rendered the tribunal's conclusions on discrimination (including something arising in consequence of disability, victimisation and reasonable adjustments) unsafe. The tribunal also misapplied the law on constructive dismissal by failing to address evidence that the claimant had raised and pursued the offer to terminate, and by treating mere passage of time as decisive on affirmation. The appeal was allowed on several grounds and the matter was remitted for rehearing by a differently constituted employment tribunal to avoid delay and because the case requires almost entirely fresh determination.

Subsidiary findings: The EAT rejected one ground (detriment for taking time off under s.57A ERA) because the tribunal had concluded the respondents were not aware that the claimant had taken dependent's leave; that finding did not disclose an error of law on the burden of proof point in the appeal.

Appeal allowed. The EAT held that the employment tribunal erred in law by failing to apply or explain the operation of the burden of proof under section 136 Equality Act 2010 and by failing to engage with evidence capable of shifting that burden. The tribunal's determinations on discrimination because of something arising in consequence of disability, victimisation, failure to make reasonable adjustments and on constructive dismissal were unsafe. The matter is remitted for rehearing by a differently constituted employment tribunal.

Employment Tribunal hearing 27–30 July 2020 and in chambers 18–19 August 2020; employment tribunal judgment sent 12 January 2021. Appeal to the Employment Appeal Tribunal lodged (Notice of Appeal sealed 16 February 2021). Appeal sifted by HHJ Auerbach who by order sealed 30 June 2021 permitted specified grounds to proceed. Determination by HHJ James Tayler on 5 May 2022 ([2022] EAT 68).