D Gibbons v K Chinambu & Anor

For an unfair-dismissal claim, the tribunal must identify the employer’s reason or, where there is more than one, the principal reason. That statutory inquiry does not govern claims under sections 15 and 26 of the Equality Act 2010.

For section 15, it is enough that something arising from disability was an effective or materially contributing reason for the treatment. For section 26, “related to” is a wider connection than “because of”, but whether conduct linked through something arising from disability is related to disability remains a fact-sensitive question. An unfair-dismissal finding does not itself determine the proportionality of a section 15 justification defence.

The claimant, who had sickle cell anaemia and a spinal condition, was dismissed after her employer concluded both that her working relationships at the Wandsworth branch had irretrievably broken down and that, for health reasons, she could work at no other branch.

The Employment Tribunal upheld her unfair-dismissal complaint but dismissed her complaints concerning the dismissal under sections 15 and 26 of the Equality Act 2010. It treated the breakdown of relationships as the reason for dismissal.

On appeal, the central issue was whether the tribunal had wrongly imported the unfair-dismissal test of the principal reason into the distinct statutory tests for discrimination arising from disability and harassment.

1. Appeal allowed. The tribunal found that two matters contributed to the dismissal: the perceived irretrievable breakdown of relationships at Wandsworth, and the claimant’s inability, because of disability-related health considerations, to work elsewhere. It was entitled, for the purpose of section 98 of the Employment Rights Act 1996, to identify the former as the principal reason.

2. It erred by carrying that principal-reason conclusion into the claims under section 15 and section 26 of the Equality Act 2010. Under section 15, “because of” does not require the disability-related matter to be the principal reason. A material or effective contributing reason suffices. The tribunal’s conclusion that dismissal was solely because of the relationship breakdown contradicted its own findings.

3. The EAT substituted a finding that the claimant was dismissed because of something arising in consequence of disability. The tribunal had effectively found that her inability to work outside Wandsworth arose from her disability. The remaining issue under section 15 was whether dismissal was a proportionate means of achieving a legitimate aim.

4. The section 15 justification issue was remitted. Although the dismissal had been found unfair under section 98(4), fairness and proportional justification are distinct and fact-sensitive inquiries. The EAT could not conclude that only one outcome was possible.

5. The dismissal-related harassment complaint was also remitted. “Related to” is a looser connector than “because of”, but the tribunal must determine whether the dismissal was related to disability and whether it had the proscribed purpose or effect under section 26.

6. Remittal was to the same tribunal if available. It would decide, after hearing submissions, whether further evidence should be admitted.

• Employment Appeal Tribunal: Allowed the claimant’s appeal, substituted a finding of discrimination arising from disability, and remitted the outstanding section 15 justification and section 26 harassment issues.
• Employment Tribunal, London South: Upheld the unfair-dismissal complaint but dismissed the dismissal-related claims under sections 15 and 26 of the Equality Act 2010.