R Sandhu v Enterprise Rent-A-Car Ltd

An appellate tribunal must read Employment Tribunal reasons fairly and as a whole. It should not undertake a hypercritical examination of isolated wording. It must nevertheless intervene where the tribunal has failed to address the essential issues or give adequate reasons. A perversity appeal succeeds only where the result was one no reasonable tribunal could have reached.

For harassment under Equality Act 2010, a tribunal may need to assess conduct cumulatively, but that depends on the circumstances. It need not undertake a separate overall analysis where distinct, minor incidents add nothing to findings that none met the statutory definition. A dismissal for refusal to accept a necessary reporting structure may be for some other substantial reason and fall within the band of reasonable responses, despite no prior warning, where the employee remains unwilling to comply.

The claimant appealed from the dismissal of her claims by an Employment Tribunal. She had been dismissed after refusing to report to an assigned payroll manager. The Tribunal held that the employer’s reason was some other substantial reason and that dismissal was fair.

She also alleged direct disability discrimination and harassment connected with her father’s cancer. The Tribunal rejected those claims, finding that the relevant conduct was not motivated by, or did not satisfy the statutory test in relation to, his disability.

The appeal challenged the adequacy of the Tribunal’s reasons, alleged perversity, and contended that the Tribunal had failed to assess the harassment allegations cumulatively and to consider lesser sanctions or incremental warnings before dismissal.

1. Appeal dismissed. The Employment Tribunal gave adequate reasons and reached conclusions open to it. Its decision was to be read fairly and as a whole, rather than by selecting isolated passages for criticism. The stringent perversity threshold was not met.

2. The Tribunal had correctly directed itself that, in an appropriate harassment case, it may be necessary to stand back and assess the overall picture. It had not lost sight of that approach. The three principal incidents involved different employees, two of whom did not know of the claimant’s father’s cancer, and were relatively minor. Having found that each allegation failed the test in section 26 of the Equality Act 2010, the Tribunal was entitled to conclude that a cumulative assessment could add nothing material. Its rejection of harassment was neither legally erroneous nor perverse.

3. The Tribunal was entitled to find that the principal reason for dismissal was the claimant’s continuing refusal to accept the required reporting structure. That was capable of being some other substantial reason under section 98 of the Employment Rights Act 1996. Although no formal warning had expressly stated that refusal to report to the payroll manager could lead to dismissal, the Tribunal had addressed that omission. It was entitled to find that a warning was unlikely to resolve the problem where the claimant remained unwilling to comply.

4. The Tribunal also permissibly concluded that dismissal was within the band of reasonable responses. The procedural defect in refusing a short postponement did not make the dismissal unfair as a whole, given the claimant’s opportunity to address the allegations and the thorough appeal. The discrimination challenge to dismissal consequently also failed.

• Employment Appeal Tribunal: appeal dismissed; the Employment Tribunal’s dismissal of the unfair dismissal, direct disability discrimination and harassment claims was upheld.
• Employment Tribunal: Employment Judge Quill, sitting with lay members, dismissed the claims in a judgment sent to the parties on 4 October 2022.