J Edwards v Unite the Union & Ors

Under section 136 of the Equality Act 2010, a tribunal must first decide whether proved primary facts could, without any explanation for the treatment, support an inference of discrimination or victimisation. It must not introduce a respondent’s explanation at that stage. If the threshold is met, the respondent must prove that the prohibited conduct played no part in the treatment.

An allegation can be a protected act under section 27 without expressly using the language of discrimination. It is enough that, fairly and contextually read, it asserts facts capable in law of amounting to discrimination. A complaint by a disabled person that refusal of a reasonable request for alternative representation caused further disadvantage was capable of alleging a failure to make reasonable adjustments.

The claimant, a member of Unite and a former employment-law solicitor for the RMT, sought Unite’s assistance in proceedings against the RMT. He alleged that Unite and certain officers had subjected him to disability discrimination, victimisation and unlawful detriment.

The Employment Tribunal sitting in Manchester dismissed the relevant victimisation allegation. It found that Jennie Formby had not properly addressed the claimant’s specific complaints, which was a detriment, but held that the section 136 burden had not shifted. It also held that the claimant’s email of 9 October 2017 was not a protected act insofar as it alleged disability discrimination.

The appeal concerned the Tribunal’s application of sections 136 and 27 of the Equality Act 2010, and the consequential status of the email under section 65(2)(c) of the Trade Union and Labour Relations (Consolidation) Act 1992.

1. Appeal allowed. The Employment Tribunal erred in deciding that the claimant had not established facts from which it could infer victimisation. It introduced possible explanations at the first stage of the section 136 inquiry, although the statutory question had to be answered in the absence of an explanation.

2. The Tribunal had found a detriment, several protected acts, and material facts capable of supporting an inference. These included the failure to investigate discrimination complaints, the failure to respond to the claimant’s request to explain his complaint by interview because of disability, the brief contact with one subject of the complaint, the absence of investigative notes, and the investigator’s failure to give evidence. The Tribunal was entitled to reject particular inferences, but had to explain why. It could not speculate that an ordinarily thorough investigator may simply have expressed conclusions briefly.

3. Only one conclusion was possible. The burden under section 136 had shifted and Unite had not discharged it, since the Tribunal had already found that it would have failed to prove that victimisation played no part in the treatment. The EAT substituted a finding that victimisation occurred.

4. The Tribunal also erred in holding that the 9 October 2017 email was not a protected act. Read fairly and as a whole, it identified disability, a reasonable request for alternative representation, the refusal of that request, and the resulting further strain. It was an implied, and nearly express, allegation that reasonable steps had not been taken to remove the disadvantage caused by Unite’s usual practice. The EAT substituted findings that the email was a protected act under section 27 of the Equality Act 2010 and qualifying conduct under section 65(2)(c) of the Trade Union and Labour Relations (Consolidation) Act 1992.

5. The consequences for the underlying claims and any remedy required evaluation by an Employment Tribunal. Those matters were remitted to a freshly constituted Tribunal.

• Employment Appeal Tribunal: Allowed the appeal, substituted findings of victimisation and protected conduct, and remitted the consequences for determination by a freshly constituted Employment Tribunal ([2024] EAT 151).
• Employment Tribunal, Manchester: Reserved judgment and reasons sent to the parties on 1 May 2020. It dismissed the relevant victimisation complaint and held that the email of 9 October 2017 was not a protected act alleging disability discrimination.