Topps Tiles PLC v G Hardy

The Employment Appeal Tribunal allowed the appeal in part because the employment tribunal erred in its approach to contributory conduct under sections 122(2) and 123(6) of the Employment Rights Act 1996. The ET had treated the question of contribution as effectively whether a reasonable employer could have dismissed for gross misconduct rather than whether the employee's culpable or blameworthy conduct caused or contributed to the dismissal.

The EAT dismissed the remaining grounds of appeal concerning causation under section 15 Equality Act 2010 and proportionality under section 15(1)(b). The EAT held that the ET had applied the correct legal approach to the section 15 causation question and permissibly took into account the possibility of an occupational health referral and the claimant's age when assessing proportionality.

Background and nature of the proceedings: The claimant, a long-serving store manager, brought complaints of unfair dismissal and disability discrimination arising from his dismissal on 22 November 2019. The employment tribunal found the claimant was disabled within section 6 of the Equality Act 2010, that the respondent had requisite knowledge of the disability, that dismissal was unfair and that dismissal amounted to discrimination under section 15 of the Equality Act 2010. The ET also determined that the claimant did not contribute to his dismissal. The respondent appealed to the Employment Appeal Tribunal.

Procedural history: The appeal proceeded after a sift and a rule 3(10) hearing; some grounds were allowed to proceed by HHJ Tucker. A Burns/Barke reference was made to clarify the ET's statement that dismissal had the effect of "ending the claimant's career."

(i) Relief sought: The appellant (Topps Tiles) sought to overturn or remit aspects of the ET's findings: (1) that the ET failed to apply the correct test on contributory conduct warranting a reduction under sections 122(2) and 123(6) ERA; (2) that the ET misapplied the causation test under section 15(1)(a) EqA; (3) that some proportionality findings rested on speculation (notably the efficacy of occupational health referral and the alleged career-ending effect of dismissal); and (4) that the ET improperly took judicial notice regarding the career-ending effect of dismissal.

(ii) Issues framed by the court: The EAT considered (a) whether the ET applied the correct test for causation under section 15(1)(a) EqA; (b) whether the ET impermissibly relied on speculation in assessing proportionality under section 15(1)(b); (c) whether the ET's reference to dismissal "ending the claimant's career" was a finding of fact unsupported by evidence or merely an emphasis of potential effect; and (d) whether the ET erred in law in its treatment of contributory conduct and the separate statutory tests under sections 122(2) and 123(6) ERA.

(iii) Court's reasoning and disposition: On causation the EAT concluded the ET applied the Pnaiser approach correctly and permissibly found the claimant's difficulties managing anger (a consequence of his disability) was a more-than-trivial influence on the dismissal. On proportionality the EAT held the ET was entitled to consider an occupational health referral and the claimant's age and service as relevant to the balancing exercise; such consideration was not mere conjecture, and Employment Judge Langridge clarified that the tribunal meant "potentially career ending." On contributory conduct the EAT found legal error: the ET conflated whether the claimant's conduct was culpable and contributed to dismissal with whether the employer's decision to dismiss was reasonable. The matter of contribution under sections 123(6) and, if applicable, 122(2), was remitted to the ET for proper application of the statutory tests.

Appeal allowed in part. The EAT allowed the ground of appeal concerning contributory conduct because the ET applied the wrong test by focusing on whether a reasonable employer could have treated the conduct as gross misconduct rather than first asking whether the claimant's culpable or blameworthy conduct caused or contributed to the dismissal and then, if so, assessing a just and equitable reduction. That issue (contribution under sections 123(6) and 122(2) ERA) is remitted to the ET. All other grounds (causation under section 15 EqA, proportionality under section 15(1)(b) EqA, and alleged judicial notice error) were dismissed; the EAT found the ET had applied correct legal principles on the discrimination issues and had not engaged in impermissible conjecture.

Appeal from an Employment Tribunal sitting in Newcastle upon Tyne which, after a two-day liability hearing in July 2021, found unfair dismissal and discrimination under section 15 Equality Act 2010. Permission to appeal was sifted by DHCJ Mansfield KC and HHJ Tucker determined the scope of grounds to proceed. A Burns/Barke procedural reference was made to the ET to clarify a passage of its judgment. This EAT judgment: Topps Tiles PLC v G Hardy [2023] EAT 56.