A FIELD v STEVE PYE AND CO (KL) LIMITED & Ors

Where there is evidence capable of supporting an inference of discrimination, an employment tribunal must grapple with it when applying section 136 of the Equality Act 2010. A tribunal may proceed directly to the reason for the treatment only if it explains why the evidence does not satisfy the first stage, or proceeds on the basis that the burden has shifted and requires the respondent to prove a wholly non-discriminatory reason.

A tribunal must determine the pleaded detriments in a victimisation claim. It must also assess whether reasonable adjustments were required before they were eventually offered. An employee's ability to attend work does not preclude a substantial disadvantage. Whether an offer to end employment is repudiatory, and whether a breach has been affirmed, require a fact-sensitive contractual assessment.

The claimant, who was disabled by arthritis, carpal tunnel syndrome and ankylosing spondylitis, appealed from an employment tribunal decision dismissing claims of disability discrimination, victimisation, failure to make reasonable adjustments, constructive unfair dismissal, and detriment connected with time off for dependants.

She had requested home working and other adjustments. The respondents initially refused home working, later offered adjustments on a trial basis, and offered her money to leave employment during a welfare meeting. The tribunal found that a letter raising attendance and performance concerns had been prompted by irritation about her absences, and that statements about her performance were gathered after her grievance.

The central issues were whether the tribunal had properly addressed evidence capable of shifting the burden of proof, the pleaded detriments, the timing of any failure to make adjustments, and the contractual issues arising from the offer to terminate employment.

1. The appeal was allowed in part. The Employment Appeal Tribunal allowed the challenges concerning reasonable adjustments, discrimination arising from disability, victimisation, the burden of proof, and constructive dismissal. It dismissed the appeal concerning time off for dependants.

2. Under section 136 of the Equality Act 2010, the burden provisions may add little where a tribunal can make reliable positive findings about the actual reason for treatment. However, they require careful attention where there is evidence capable of suggesting discrimination. A tribunal must not simply subsume such evidence within an overall assessment and find a non-discriminatory reason without addressing it. If it moves straight to the reason-why question, it should explain why the first-stage evidence does not suffice, or proceed on the assumption that the burden has shifted and require cogent proof that the treatment was in no sense discriminatory.

3. The evidence relied upon, including the respondent's admissions and comments about the claimant's absences, home working and grievance, was capable of suggesting discrimination. The tribunal neither addressed whether that evidence shifted the burden nor adequately explained its conclusions. Its dismissals of the discrimination arising from disability, victimisation, reasonable-adjustments and potentially direct-discrimination claims were therefore unsafe.

4. The tribunal had recorded the respondent's concession that the claimant's absence and difficulties attending the office arose in consequence of disability. It could not, without alerting the parties, make an inconsistent finding that there was no evidence of such difficulty before 13 August 2018. The causal questions, including the effect of absence after the claimant's fall, required reconsideration.

5. The tribunal also failed to decide whether the pleaded detriments were imposed because of protected acts. It wrongly treated later agreement to adjustments as resolving whether there had previously been a failure to make them. Attendance at the workplace did not itself exclude substantial disadvantage. The constructive-dismissal decision could not stand. An offer to terminate employment must be assessed in its particular contractual context, and affirmation cannot be inferred merely from the passage of time.

6. The section 57A claim was correctly dismissed. The tribunal was entitled to conclude that, at the relevant time, the respondents did not know that the claimant had taken time off to care for her grandchild.

7. The remaining claims were remitted to a differently constituted employment tribunal for determination afresh.

• Employment Appeal Tribunal: Allowed the appeal on the discrimination, reasonable-adjustments, burden-of-proof and constructive-dismissal grounds, and remitted those matters for fresh determination. The appeal concerning detriment for time off under section 57A of the Employment Rights Act 1996 was dismissed: [2022] EAT 68.
• Employment Tribunal: Employment Judge Postle, sitting with members, dismissed the claimant's claims in a judgment sent to the parties on 12 January 2021.