R Meshram v Entserv UK Limited

An employment tribunal must give reasons which enable the parties and an appellate court to understand how it resolved material issues. It need not determine every evidential conflict or address every submission. A decision is inadequate, however, where it does not reveal whether the burden of proof shifted in relation to a central act complained of, or what positive explanation excluded the protected act as a material influence.

In a victimisation claim concerning an employer’s failure to progress an internal appeal, a finding that the responsible manager did nothing with the appeal email establishes the conduct, but does not itself explain its reason. The tribunal must make sufficient findings on that issue where the surrounding evidence makes the protected act material to the analysis.

The claimant was dismissed shortly after beginning employment with the respondent. He alleged victimisation because he had previously brought Employment Tribunal proceedings against a former employer. He complained both of the dismissal and of the respondent’s failure initially to progress his internal appeal against dismissal.

The Employment Tribunal dismissed the claims. It found that the manager knew of the protected act before dismissal, but dismissed the claimant because he was believed to have misled the manager during recruitment. It also rejected the complaint concerning delay in the internal appeal.

The claimant appealed on perversity and adequacy-of-reasons grounds. The central issues were whether the tribunal had to resolve disputes concerning information received by the dismissing manager, and whether its reasons sufficiently addressed the manager’s failure to act on the appeal email.

1. Appeal allowed in part. The Employment Tribunal’s rejection of the victimisation complaint concerning the manager’s failure to action the appeal email was not compliant with Meek. That part of the claim was remitted to the same tribunal, so far as available, without fresh evidence and following further submissions.

2. The tribunal’s dismissal of the victimisation complaint concerning dismissal was neither perverse nor inadequately reasoned. It had made clear findings that the manager knew of the protected act but dismissed the claimant because he considered that the claimant had misled him about his continuing employment and had obtained an improved financial offer on that basis. It sufficiently explained why knowledge of the protected act did not materially influence that decision.

3. The tribunal was not required to resolve every conflict between the manager and a former colleague about the source and timing of information concerning the claimant’s previous employment. The material questions were when the manager learned of the prior employment’s end, allegations of fraud, and the protected act, and whether knowledge of the protected act materially influenced dismissal. Its findings and reasoning addressed those questions.

4. In contrast, the tribunal made no clear finding why the manager did nothing with the appeal email. Its observation that the manager’s evidence was hard to accept did not establish either that the burden of proof had not shifted, with reasons why, or a positive non-victimising explanation. Findings about later administrative delay did not answer that distinct and central issue.

5. The dismissal complaint was also remitted, but only consequentially. If the further determination of the appeal-email complaint finds that the protected act materially influenced that conduct, the tribunal must consider what evidential effect, if any, that has on its earlier conclusion about dismissal. A possible issue under Equality Act 2010, section 109(4), may then arise.

• Employment Appeal Tribunal — allowed the appeal in part and remitted the victimisation complaint concerning the unactioned appeal email: [2023] EAT 126.
• Employment Tribunal, London Central — dismissed the claimant’s complaints against the respondent in a reserved decision. No citation was stated in the judgment.