Blackdown Hill Management Limited & Anor v Anastasia Tuchkova

For discrimination under sections 18 and 13 of the Equality Act 2010, maternity leave or sex must have materially influenced the decision-maker's treatment. It is insufficient that maternity leave was merely a but-for cause, or the factual context or background of the treatment.

An employment tribunal which finds unfavourable treatment must apply that causation test to each allegation and explain why it is met. In redundancy cases, a pool of one is not automatically fair merely because the employee's role appears unique. The employer must fairly consider whether a wider pool or selection exercise is appropriate.

The claimant returned from maternity leave to employment in which her role had included legal, administrative and project-management work. The respondents later dismissed her for redundancy.

The Employment Tribunal found that redundancy was the reason for dismissal, but held that the dismissal was ordinarily unfair. It also upheld four complaints of maternity discrimination under section 18, and corresponding direct sex-discrimination complaints under section 13, concerning her return to work, access to files, meetings and redundancy consultation.

The respondents appealed. The central issues were whether the Tribunal had applied the correct causation test for discrimination, whether certain claims were in time, and whether its findings on the redundancy-selection pool and the Polkey assessment disclosed an error of law.

1. Appeal allowed in part. The findings on the four successful maternity-discrimination and corresponding direct sex-discrimination complaints could not stand. Those matters were remitted to a differently constituted Employment Tribunal.

2. Sections 18 and 13 of the Equality Act 2010 both require the impugned treatment to have occurred because of maternity leave or sex. The protected matter need not be the sole or main cause, but it must materially influence the decision-maker, consciously or unconsciously. A mere but-for connection, or background context, is insufficient.

3. Although the Tribunal had initially directed itself correctly, its conclusions concerning all four successful discrimination complaints either applied a looser test, including treatment described as merely “directly related” to maternity leave, or failed to explain why maternity leave was a material operative cause. Its reasoning on the first three complaints also failed to determine whether they were brought in time, or whether there was a continuing act or a just and equitable extension.

4. The ordinary unfair-dismissal finding remained undisturbed. The Tribunal was entitled to find that the employer had unfairly failed to evaluate whether the claimant should be in a wider redundancy pool. It had not held that a pool of one was necessarily impermissible; its criticism was that the issue had received insufficient consideration.

5. The Tribunal's Polkey assessment of a 25% chance that fair consultation, selection and consideration of alternatives would have retained the claimant in employment was not perverse. It took account of the speculative counterfactual, the potential for reorganisation, lower-paid alternative work and the damaged employment relationship.

6. The remitted Tribunal is bound by the original Tribunal's background findings of fact, but must reconsider the section 18 and section 13 complaints, and potentially the associated limitation issues, afresh. It may give appropriate case-management directions concerning evidence and cross-examination.

• Employment Appeal Tribunal: Allowed the appeal against four successful discrimination complaints and remitted them to a differently constituted Tribunal. Dismissed the challenges to the ordinary unfair-dismissal finding and the Polkey assessment.
• Employment Tribunal (London South): Upheld ordinary unfair dismissal and four complaints under sections 18 and 13 of the Equality Act 2010; dismissed other claims.