Ionel Ion v Citu Manufacturing Ltd & Anor

The Employment Appeal Tribunal allowed the claimant's appeal and remitted the whole matter to a freshly constituted employment tribunal. The EAT found important legal and procedural errors in the ET's handling of the case. Key legal errors identified were the tribunal's inadequate application of section 136 of the Equality Act 2010 (failure to identify and grapple with facts giving rise to an inference of race discrimination and to recognise the burden had shifted to the respondents), insufficient factual findings and analysis in respect of alleged protected disclosures (whistleblowing) and failure to engage properly with an indirect disability discrimination argument under section 19 of the Equality Act 2010.

Material procedural irregularities were also found: the quality of Romanian/English interpretation in the first four days was inadequate and not addressed promptly, and the employment judge intervened on a number of occasions to prevent cross-examination about company culture and values that were central to the respondents' stated reason for selection, both of which undermined the fairness of the hearing. As a result the EAT concluded that the ET's conclusions were unsafe and remitted the whole case for rehearing.

Background and parties: The claimant, a Romanian national employed by CITU as a joiner from December 2018 until dismissal with effect 31 July 2020, brought claims including race discrimination, whistleblowing (protected disclosures), indirect disability discrimination and unfair dismissal/selection for redundancy. The respondents were Citu Manufacturing Ltd and its managing director. The original employment tribunal in Leeds heard the matter over seven days in May 2021 and dismissed the substantive claims (other than a modest holiday pay award).

Procedural posture: The claimant appealed to the Employment Appeal Tribunal. After case management and a Rule 3(10) hearing the EAT heard the appeal on five grounds advanced by the claimant.

Nature of the claims and relief sought: The claimant sought remedies for unlawful race discrimination, detriment/dismissal for protected disclosures (whistleblowing) under the Employment Rights Act 1996 (identified in the list of issues as section 103A / section 105(6A) claims), and relief for indirect disability discrimination and related remedies arising from his dismissal as part of a redundancy process.

Issues framed by the court:

• whether the ET had properly applied the burden-shifting provisions of section 136 Equality Act 2010 in relation to the race discrimination claim;
• whether the ET had addressed section 19 Equality Act 2010 in relation to indirect disability discrimination / reasonable adjustments;
• whether the ET made sufficient factual findings and analysis as to the alleged protected disclosures and their causal effect on dismissal;
• whether inadequate interpretation (Romanian/English) during hearing materially affected fairness;
• whether the employment judge improperly limited cross-examination on culture and values central to the respondents' stated selection reasons.

Court's reasoning and findings: The EAT identified a set of facts which, taken together, gave rise to a strong prima facie case of race discrimination (for example: sudden out of the blue redundancies without consultation; selection on the basis of perceived failure to fit cultural values; a team leader's remark that a foreigner could not lead a team of Brits; a disproportionate number of non-British employees selected). The tribunal had not applied the two-stage Igen approach under section 136: it should have identified the facts giving rise to an inference of discrimination, acknowledged the burden had shifted to the respondents and then required cogent evidence to show the dismissal was in no sense discriminatory. The EAT concluded the ET did not do so and therefore its conclusion was unsafe, warranting remittal rather than substitution.

On indirect disability discrimination, the EAT accepted that the ET conflated issues of employer knowledge relevant to reasonable adjustments with the separate analysis required under section 19 and remitted that claim for reconsideration. Regarding whistleblowing, the ET failed to make clear factual findings about what was said, to analyse whether the matters were qualifying disclosures and to examine whether the respondents' perception of the claimant as disruptive was causally linked to any protected disclosures; the EAT remitted that claim too.

Finally, the EAT found there were material procedural irregularities: the Romanian interpretation used during the first four days was inadequate and was not investigated and addressed promptly, causing real prejudice; and the employment judge intervened on many occasions to prevent questioning about company culture and values which were central to the respondents' defence, further undermining fairness.

Disposition: The EAT allowed the appeal in full and remitted the entire matter to a freshly constituted employment tribunal to rehear the case.

This is an appeal. The appeal is allowed in full and the whole matter is remitted to a freshly constituted employment tribunal for rehearing. The EAT reached this result because the ET had not properly applied section 136 Equality Act 2010 (failed to identify the facts giving rise to an inference of race discrimination and to recognise the consequent burden shift), had failed to make adequate findings or analysis on alleged protected disclosures (whistleblowing) and on indirect disability discrimination under section 19, and there were material procedural irregularities (inadequate interpretation and inappropriate restriction of cross-examination on matters central to the respondents' case) that undermined the fairness of the hearing.

Original hearing: Employment Tribunal, Leeds — seven day hearing in May 2021, judgment dismissing substantive claims (except modest holiday pay). Appeal to Employment Appeal Tribunal; Rule 3(10) hearing on 8 March 2023 (Judge Stout) allowed the appeal to proceed on five grounds. EAT judgment delivered 14 December 2023 [2023] EAT 151 — appeal allowed and remitted to a freshly constituted ET.