Dr Oleg Iourin v The Chancellor, Masters and Scholars of the University of Oxford

An Employment Tribunal’s reasons must be read fairly and as a whole. An infelicitous formulation of the burden of proof will not establish an error of law where the reasons show that the correct statutory test was understood and applied.

However, a Tribunal commits a material error of law where an operative finding rests on an uncontroverted factual mistake. Where that mistake prevents a proper assessment of the burden of proof and the respondent’s explanation, the affected allegations must be reheard unless the appellate court can safely conclude that the result would inevitably have been the same.

In a disability claim based on the counterfactual effect of treatment, the claimant must provide sufficient evidence of the effect of medication and of the likely position without it. The Tribunal may reject the claim where that evidence is absent.

The Claimant appealed from the dismissal by an Employment Tribunal of claims for direct sex discrimination, victimisation and failure to make reasonable adjustments under the Equality Act 2010.

The claims arose from the Respondent’s handling of a colleague’s grievance against the Claimant. The grievance committee found that the Claimant had attempted to hug and kiss the colleague, but expressly found that this conduct did not amount to harassment or sexual harassment. The Respondent later required him to undertake equality, diversity and harassment training.

The Tribunal dismissed all claims. It held that the Claimant was not disabled by reason of a transient ischaemic attack and rejected eleven allegations of direct discrimination and corresponding victimisation. The central issues on appeal were the burden of proof, a factual error concerning the grievance outcome, and whether the Tribunal had considered the counterfactual effects of medication.

1. Appeal allowed in part. The Tribunal’s dismissal of allegations 1.10 and 1.11, for direct sex discrimination and victimisation arising from the requirement to undertake training, was set aside and remitted for rehearing. The appeal otherwise failed.

2. The Tribunal had not misapplied the burden of proof under section 136 of the Equality Act 2010. Its statement that the claimant had to show the reason for differential treatment was a permissible paraphrase when read with the immediately following recognition that the burden could shift. The operative reasoning addressed the factual basis of each allegation, comparison, and whether an inference of discrimination could be drawn. Its reference to a “plausible” explanation did not show that it had applied a lower test, since the reasons as a whole stated and applied the requirement that the prohibited ground played no part.

3. The Tribunal made a material error of law in stating that the grievance committee had found harassment falling short of sexual harassment. The committee had made no finding of harassment. The error was central to the Tribunal’s conclusion that harassment training was unremarkable and to its assessment of whether the circumstances required an explanation from the Respondent. It therefore vitiated its analysis of the two training allegations.

4. The Appeal Tribunal could neither substitute a decision for the Claimant nor conclude that the Tribunal would inevitably have dismissed those allegations without the error. They were remitted, including the corresponding victimisation allegations, to a differently constituted Tribunal for a fresh hearing.

5. The Tribunal was entitled to find that the Claimant was not disabled at the material time. It had considered the absence of evidence about medication and its effects. In a claim relying on the counterfactual effect of treatment under Schedule 1 paragraph 5, the available evidence did not establish a substantial and long-term adverse effect absent medication.

• Employment Appeal Tribunal: Allowed the appeal in part, set aside the dismissal of allegations 1.10 and 1.11, and remitted them for a fresh hearing.
• Employment Tribunal, Reading: Dismissed all claims for direct sex discrimination, victimisation and disability discrimination under the Equality Act 2010. The written reasons were signed on 19 February 2021 and sent to the parties on 5 March 2021.