Ionel Ion v Citu Manufacturing Ltd & Anor

An Employment Tribunal must apply the two-stage burden of proof under section 136 of the Equality Act 2010. Where the primary facts support an inference of race discrimination, the burden passes to the respondent to prove with cogent evidence that race played no part in the decision. The tribunal must confront material evidence pointing towards discrimination.

In a whistleblowing dismissal claim, where the employer relies on a perception that the claimant was disruptive, the tribunal may need to determine whether protected disclosures caused that perception. A tribunal must also investigate timely complaints about interpretation and allow relevant cross-examination. Serious failures in those respects can render the hearing unfair and require a complete rehearing.

The claimant, a Romanian joiner, was selected for redundancy by his employer during the Covid-19 pandemic. The Employment Tribunal sitting at Leeds dismissed his claims for race discrimination, indirect disability discrimination and whistleblowing detriment in dismissal, save for a modest holiday-pay claim.

He appealed, contending that the tribunal had misapplied the burden of proof in his race claim, failed to analyse the indirect disability and protected-disclosure issues, and conducted an unfair hearing. He relied in particular on inadequate Romanian interpretation and restrictions on questioning about the employer’s culture and values, which formed part of the stated reason for selection.

The central issue was whether the legal and procedural errors made the tribunal’s dismissal of the claims unsafe.

1. Appeal allowed in full. The Employment Tribunal’s judgment was set aside and the whole matter was remitted to a freshly constituted tribunal for a rehearing.
2. On race discrimination, the tribunal failed properly to apply section 136 of the Equality Act 2010. The unconsulted selection, refusal to allow re-employment, reliance on nebulous cultural values, the team leader’s remark about a foreigner leading British workers, and the selection statistics could support a strong prima facie inference of discrimination. The burden therefore passed to the respondents. The tribunal should have required cogent proof that nationality played no part in the dismissal and grappled with the evidence suggesting discrimination. Its conclusory finding about company values was insufficient. The evidence did not, however, permit the EAT to substitute a finding of discrimination.
3. On indirect disability discrimination, the tribunal wrongly treated the claim as adding nothing to the reasonable-adjustments claim. The employer’s knowledge was not an element of the indirect-discrimination analysis, save potentially on justification. The tribunal also had not addressed whether requiring heavy lifting placed the claimant at a particular disadvantage.
4. On whistleblowing, the tribunal needed to make findings on the alleged disclosures, decide whether they were protected, and examine their effect. Given the reliance on the claimant’s perceived disruptive attitude, it had to consider whether that perception was caused by protected disclosures.
5. The interpretation failures and unjustified restrictions on relevant cross-examination were serious material procedural irregularities. Together with the legal errors, they fatally undermined the fairness of the hearing.

• Employment Appeal Tribunal: Allowed the appeal in full and remitted all claims for rehearing by a fresh tribunal: [2023] EAT 151.
• Employment Tribunal (Leeds): Following a seven-day hearing in May 2021, dismissed the discrimination and whistleblowing claims, while allowing a modest holiday-pay claim. Written reasons were delivered on 6 July 2021.