D v E

An indirect discrimination claim under Equality Act 2010 section 19 may concern a disadvantage arising from the full operation of a neutral provision, criterion or practice (PCP). A tribunal must not confine its analysis to one stated step, such as suspension, where the PCP also provides for consideration of further action and dismissal is an alleged consequence.

A claimant’s reliance on dismissal does not necessarily make the claim one of direct discrimination. On a strike-out application, the tribunal must assess the pleaded disadvantage and justification on the claimant’s case at its highest. A claim with more than a fanciful prospect of success should not be struck out.

The claimant, employed by an organisation working with young people, was dismissed following the loss of the contract on which he worked. He alleged that an outstanding police investigation into an allegation of rape had caused the respondent to dismiss him rather than redeploy him. The respondent maintained that the dismissal was by reason of redundancy.

The claimant brought only a claim of indirect sex discrimination. The Employment Tribunal struck it out on 4 February 2021, holding that the proposed PCP was not neutral and that a reformulated PCP concerning suspension pending a police investigation could not found a complaint about dismissal.

The appeal concerned whether dismissal could be the particular disadvantage caused by the reformulated PCP, which included consideration of further action after an allegation of serious sexual misconduct.

1. Appeal allowed. The Employment Tribunal’s order striking out the indirect sex discrimination claim was set aside and the claim was remitted for further case management.

2. The Employment Judge had permissibly assisted an unrepresented claimant by formulating an alternative PCP. The respondent had accepted, for the strike-out hearing, that it operated a PCP under which an employee accused of serious sexual misconduct would be suspended on full pay pending the police investigation and then be considered for further action. It was also accepted that this PCP might disadvantage men more than women.

3. The tribunal materially erred by treating dismissal as capable only of founding a direct discrimination claim. Under section 19 of the Equality Act 2010, the relevant causal question was whether the PCP caused the group and individual disadvantage. The PCP extended beyond suspension: its reference to further action could encompass dismissal. On the claimant’s case at its highest, dismissal was therefore a potential consequence of applying the PCP.

4. The error was material. The tribunal had not considered whether dismissal, as distinct from paid suspension, was justified as a proportionate means of achieving a legitimate aim. Acceptance that suspension was justified did not amount to acceptance that dismissal was justified. Possible redeployment and the absence of a charge or conviction meant that justification could not safely be determined against the claimant on a strike-out application.

5. The claim might face substantial evidential difficulties at a final hearing, including on the factual basis of dismissal, group and individual disadvantage, and justification. Those difficulties did not establish that it had no realistic prospect of success. The respondent’s application for a deposit order could be considered on remittal.

• Employment Appeal Tribunal: Allowed the claimant’s appeal in [2023] EAT 66, set aside the strike-out of the indirect discrimination claim, and remitted it for further case management.

• Employment Tribunal, Birmingham: On 4 February 2021, struck out the claimant’s indirect sex discrimination claim as having no reasonable prospect of success.