J KLONOWSKA-SOCHA v FALCK UK AMBULANCE SERVICES LIMITED

An Employment Tribunal must give reasons which identify and resolve the material factual disputes raised by the agreed issues. It must explain sufficiently why it accepted or rejected the parties’ competing accounts and any non-discriminatory explanation.

The burden of proof under section 136 of the Equality Act 2010 is not mechanistic. However, where alleged pre-dismissal conduct may support an inference of discriminatory motivation, the tribunal must make the necessary findings and consider whether the burden has shifted. An unsupported conclusion that dismissal was not because of disability is inadequate where those matters have not been addressed.

The claimant, who was disabled by reason of Lyme disease and Babesiosis, alleged direct disability discrimination under section 13 of the Equality Act 2010. She complained that her manager failed to answer an email about her condition, refused her medical evidence, made pejorative comments about her health, and then dismissed her during probation purportedly for performance reasons.

The East London Employment Tribunal dismissed the claim. It found that the claimant had not been dismissed because of disability and rejected the earlier matters as "subsidiary issues", while identifying shortcomings in the respondent’s handling of probation. The claimant appealed on the adequacy of the Tribunal’s reasons and its approach to section 136.

1. Appeal allowed. The Employment Tribunal’s decision was set aside and the direct disability discrimination claim was remitted for a rehearing before a differently constituted Tribunal.

2. The agreed list of issues required findings on the manager’s knowledge of the claimant’s impairment, whether she had failed to respond to the claimant’s email, and whether she had made the alleged remarks and refused the medical note. Those matters were disputed and were capable, on the claimant’s case, of evidencing a discriminatory mindset. The Tribunal made no findings on them and did not reveal how it resolved the evidential conflicts.

3. The Tribunal also failed to state whether it accepted the respondent’s explanations for the alleged pre-dismissal conduct. Its bare conclusion that there was no convincing evidence of discriminatory motivation did not meet the requirement to explain the findings and reasoning necessary to decide the identified issues.

4. Section 136 of the Equality Act 2010 does not require a mechanistic exercise. It may add little where a Tribunal can make clear positive findings. Here, however, the absent findings prevented any assessment of whether the facts relied on could support an inference of discrimination and whether the respondent had shown a non-discriminatory explanation.

5. The failure also tainted the dismissal conclusion. The earlier alleged conduct was relied upon as evidence from which discrimination in the dismissal might be inferred. The Tribunal could have rejected those allegations, accepted non-discriminatory explanations, or found that genuine performance concerns caused the dismissal. It made none of those findings. Its conclusion that dismissal was not because of disability could therefore not stand.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and remitted the direct disability discrimination claim for rehearing.
• East London Employment Tribunal: Dismissed the claimant’s direct disability discrimination claim.