D v E

The Employment Appeal Tribunal held that the Employment Tribunal erred in law when it struck out the claimant's indirect sex discrimination claim under section 19 of the Equality Act 2010. The error arose because the Employment Tribunal failed to treat dismissal as a possible particular disadvantage flowing from the provision, criterion or practice (PCP) it had identified (suspension pending investigation and consideration of further action), and instead concluded that dismissal could only found a claim of direct discrimination. The EAT found that the PCP as formulated could encompass further action up to dismissal and that the failure to consider justification in that context made the strike-out unsustainable.

Background and parties: The claimant was employed for 18 months by the respondent, an organisation working with young people, and was dismissed in April 2020. During his employment an allegation of rape (not connected to his employment) led to a period of suspension and, according to the claimant, dismissal because of that allegation. The respondent advanced redundancy as the reason for dismissal but accepted in its pleadings that the claimant was not redeployed in part because he remained under investigation for a sexual offence.

Nature of the claim: The claimant brought a claim to the Employment Tribunal alleging indirect sex discrimination contrary to section 19 of the Equality Act 2010 (no minimum service requirement). He did not bring a direct discrimination claim and lacked the service necessary for unfair dismissal under section 108 of the Employment Rights Act 1996.

Procedural history: The Employment Tribunal (Employment Judge Hughes) struck out the indirect discrimination claim as having no reasonable prospect of success. The claimant obtained permission to appeal; a preliminary hearing before the President permitted one ground to proceed. The appeal was heard by the EAT on 1 February 2023.

Issues framed by the court:

• Whether the Employment Tribunal applied the correct legal test in identifying and formulating the PCP relied on;
• Whether dismissal could be a 'particular disadvantage' arising from the PCP identified;
• Whether the Employment Tribunal was entitled to strike out the claim without considering justification in relation to dismissal and without ordering a deposit.

Reasoning and outcome: The EAT accepted that the Employment Tribunal permissibly reformulated the PCP for the purpose of clarity (suspension on full pay pending police investigation with consideration of further action). The EAT held that the Employment Tribunal materially erred by treating dismissal as necessarily a matter of direct discrimination and by failing to consider whether dismissal might be a particular disadvantage arising from that PCP. Because the Employment Tribunal did not address justification for dismissal (or consider alternative measures such as redeployment), the strike-out was unsafe. The EAT allowed the appeal, set aside the strike-out, and remitted the claim to the Employment Tribunal for further case management, including consideration of a deposit order.

Appeal allowed. The Employment Tribunal's decision to strike out the indirect sex discrimination claim was set aside because the tribunal erred in law by failing to recognise that the PCP it had identified (suspension pending investigation with consideration of further action) could give rise to the particular disadvantage of dismissal; that error was material because justification for dismissal had not been considered. The claim was remitted to the Employment Tribunal for further case management.

Employment Tribunal (Birmingham) judgment and reasons dated 4 February 2021 struck out the indirect discrimination claim. Permission to appeal was given by HHJ Katherine Tucker; a preliminary hearing before the President (Eady J) on 4 May 2022 permitted one ground to proceed. Appeal heard in the Employment Appeal Tribunal on 1 February 2023, [2023] EAT 66.