D Gibbons v K Chinambu & Anor

The Employment Appeal Tribunal held that the employment tribunal erred in applying the unfair dismissal "principal reason" approach to claims under section 15 and section 26 of the Equality Act 2010. The employment tribunal had found two operative contributing reasons for dismissal: an irretrievable breakdown in working relationships at the Wandsworth branch and the claimant's inability, by reason of her disability, to work at other branches. For unfair dismissal purposes the tribunal identified the principal reason correctly as the breakdown in relationships, but it should have treated the disability-related inability to relocate as a materially contributing reason when deciding the Equality Act complaints.

Accordingly, the EAT substituted a finding that the claimant was dismissed because of something arising in consequence of disability for the purposes of section 15, remitted the question of justification under section 15 to the employment tribunal, and set aside the tribunal's dismissal of the harassment complaint under section 26, remitting that complaint for reconsideration.

Background and parties: The claimant, employed by the second respondent from 1988 until her dismissal in September 2018, suffered from two disabilities (referred to as sickle cell anaemia and a spinal condition). She brought complaints including unfair dismissal and Equality Act claims under section 15 (discrimination arising from disability) and section 26 (harassment related to disability). The employment tribunal (Employment Judge Tsamados, Ms B Von Maydell-Kock and Ms G Mitchell, London South) produced a reserved judgment after a multi-day hearing.

Procedural posture and relief sought: The claimant appealed the tribunal's dismissal of her section 15 and section 26 complaints to the Employment Appeal Tribunal. Her unfair dismissal claim had succeeded before the tribunal and was not appealed. She sought a finding that her dismissal was at least in part because of something arising in consequence of her disability and that the dismissal was related to disability for harassment purposes.

Factual findings relevant to appeal: The tribunal found that (i) mediation concluded relationships at the Wandsworth branch had broken down irretrievably, and (ii) the employer concluded (and the tribunal accepted) that the claimant could not work elsewhere because of her health and the effect of pollution on her sickle cell condition. The dismissal decision and the subsequent appeal decision both referred to those two factors.

Issues framed by the court:

• Whether the tribunal correctly applied the law when deciding if dismissal was "because of something arising in consequence of" disability (section 15) and whether dismissal was "related to" disability (section 26), given that more than one reason contributed to dismissal;
• Whether the tribunal’s factual findings supported a conclusion that disability-related inability to relocate was a contributing cause of dismissal;
• If the tribunal erred, what remedial steps should follow — substitution, remission or rehearing.

Court’s reasoning and outcome: The EAT analysed the distinction between the unfair dismissal test (identify the reason or principal reason under section 98 ERA) and the Equality Act tests (section 15: "because of" which allows multiple contributing reasons; section 26: "related to" which is a looser connector). The EAT concluded that the tribunal had found two contributing reasons and was required, when dealing with the Equality Act complaints, to consider the disability-related reason even if it was not the principal reason for unfair dismissal. The EAT therefore concluded that the tribunal erred in dismissing the section 15 claim and the harassment claim insofar as they related to dismissal.

Remedy and directions: The EAT substituted a finding that the claimant was dismissed because of something arising in consequence of her disability for section 15 purposes, remitted the question of whether the dismissal was a proportionate means of achieving a legitimate aim (justification) to the employment tribunal, and remitted the section 26 harassment complaint for reconsideration. The EAT directed that the same tribunal panel hear the remitted matters insofar as they are available and left to that tribunal the decision whether to admit further evidence, after giving the parties the opportunity to make submissions.

Appeal allowed in part. The Employment Appeal Tribunal found that the employment tribunal had erred by applying the unfair dismissal "principal reason" approach to the Equality Act complaints. The EAT substituted a finding that the dismissal was because of something arising in consequence of disability for section 15 purposes, remitted the question of justification under section 15 to the employment tribunal, and overturned the dismissal of the harassment complaint under section 26 and remitted it for reconsideration. The EAT directed remission to the same tribunal panel so far as available and left any issue of further evidence to the tribunal to decide after submissions.

Appeal from the Employment Tribunal (Employment Judge Tsamados, Ms B Von Maydell-Kock and Ms G Mitchell, London South) reserved judgment to the Employment Appeal Tribunal, neutral citation [2023] EAT 50.