Blackdown Hill Management Limited & Anor v Anastasia Tuchkova

The Employment Tribunal found that the claimant had been dismissed for the fair reason of redundancy but that the dismissal was unfair under section 98(4) Employment Rights Act 1996 because the respondents failed to carry out a fair consultation and selection process (including placing the claimant in a pool of one without adequate evaluation) and mishandled the grievance and appeal. The tribunal upheld four complaints of unlawful discrimination under section 18 Equality Act 2010 (maternity discrimination) and related direct sex discrimination complaints under section 13, but the Employment Appeal Tribunal found legal error in those discrimination conclusions.

The EAT held that the tribunal had correctly stated the legal test for section 18/13 (that the unfavourable treatment must be "because" of the exercise of maternity rights and materially influence the decision-maker) but either applied the wrong test or failed to explain why the maternity absence was more than background/context or a but-for cause. The tribunal also failed to address jurisdictional time issues in respect of three of the successful discrimination strands and inadequately reasoned the finding about removal of files from the claimant's laptop. The EAT therefore allowed part of the appeal and remitted the discrimination complaints for rehearing on those issues.

Background and parties: The claimant, a Russian-qualified lawyer employed by the first respondent (a company) and working for the second respondent, took maternity leave and sought to return to work in March 2018. On return she encountered loss of access to emails and files, was told there was no job for her, raised a grievance and went off sick; she was dismissed in July 2018 for redundancy.

Nature of the claim and relief sought: The claimant brought complaints including ordinary unfair dismissal and discrimination: maternity discrimination under section 18 Equality Act 2010, direct sex discrimination under section 13, and harassment under section 26. The Employment Tribunal upheld unfair dismissal and four discrimination complaints; the respondents appealed to the EAT.

Issues for the court:

• Whether the tribunal correctly applied the legal causation test for section 18/section 13 discrimination (treatment "because of" the exercise of maternity rights rather than merely as background/context).
• Whether the tribunal’s findings about specific acts (denial of previous role on return, lack of meaningful work/access to systems, conduct in meetings, consultation and selection process including pool-of-one, and laptop file removal) were legally and factually sound.
• Whether the tribunal erred procedurally by failing to address time limits and extension of time for bringing complaints.
• Polkey/remedy calculation and whether the tribunal impermissibly substituted its commercial judgment for that of management.

Court’s reasoning and outcome on those issues: The EAT concluded that the tribunal had correctly found redundancy as the reason for dismissal but unfairness in the process (failure to consult, inadequate selection exercise, failure to provide an appeal). On discrimination, although the tribunal had stated the correct legal test, the EAT found that in four successful strands the tribunal either applied a "related to" or but-for style reasoning or failed to explain why maternity leave materially influenced the relevant decisions. The EAT also held the tribunal failed to address whether three of those complaints were out of time and did not adequately engage with evidence and burden-of-proof considerations about the wiping/removal of files from the laptop. The EAT dismissed challenges to the tribunal’s Polkey assessment and to the overall unfair dismissal finding (other than as relevant to remedy) but allowed parts of the appeal on the discrimination findings and remitted those issues to a differently constituted employment tribunal for rehearing, bound by the background factual findings.

Appeal allowed in part. The EAT upheld that the tribunal was correct to find redundancy as the reason for dismissal but unfair dismissal for procedural failures; however the tribunal erred in its reasoning on four successful discrimination complaints under section 18 Equality Act 2010 (and related section 13 complaints) by misapplying or failing to explain the causation test and by not addressing time jurisdiction issues and certain evidential/burden matters. Those discrimination complaints are remitted to a different employment tribunal for rehearing on those points, with directions on evidence and possible cross-examination. Other grounds (including Polkey and pool-of-one remedy issues) were rejected and the tribunal’s remedy findings largely left intact.

Appeal to the Employment Appeal Tribunal from the Employment Tribunal (London South) decision (full merits hearing) upholding the claimant's complaints of unfair dismissal and certain discrimination complaints; EAT decision reported at [2023] EAT 156, remitting some discrimination issues to a different employment tribunal for reconsideration.