University of Exeter v Dr Annette Plaut

Harassment and victimisation are distinct statutory wrongs and must be analysed by applying their separate elements. A harassment claim requires unwanted conduct related to a protected characteristic and the prescribed purpose or effect. A victimisation claim requires a protected act, or belief in one, and detriment because of it.

In an unfair-dismissal claim, the tribunal must not substitute its own view, but may find dismissal outside the band of reasonable responses. The band is not infinitely wide. An Acas uplift requires analysis of whether the Code applied, whether there was an unreasonable failure to comply, and whether an uplift is just and equitable.

The University appealed against an Employment Tribunal judgment which upheld Dr Plaut’s claims of unfair dismissal, harassment and victimisation arising from her second suspension. It also awarded a 25% uplift for breach of the Acas Code of Practice on Disciplinary and Grievance Procedures.

Dr Plaut, a long-serving senior lecturer, had received a final written warning following an earlier student complaint. Following a further complaint by another student, the University dismissed her with notice. The Tribunal found that the dismissal was procedurally and substantively unfair. It treated a comment at a return-to-work meeting as supporting both harassment and victimisation findings.

The central issues were whether the Tribunal had applied the correct and separate statutory tests, whether it had impermissibly substituted its view on dismissal, and whether it had adequately reasoned the Acas uplift.

1. Appeal allowed in part. The findings of harassment and victimisation were set aside. The harassment claim was not remitted. The victimisation claim concerning the comment made at the return-to-work meeting was remitted to a differently constituted Employment Tribunal, as was the Acas uplift.

2. The Tribunal had conflated the distinct tests under sections 26 and 27 of the Equality Act 2010. Harassment required analysis of unwanted conduct related to a protected characteristic and of its statutory purpose or effect. Victimisation required a protected act and detriment because of that act. The Tribunal instead considered protected acts while addressing harassment and did not analyse how the claimant’s vague criticism of inclusivity fell within section 27(2). Its findings on both claims were therefore unsafe.

3. The unfair-dismissal finding stood. Although the Tribunal’s reasoning was garbled, its reliance on [2019] UKSC 55 was inadequately founded and it did not clearly apply the Burchell analysis. On a fair reading, however, it had held that dismissal for the alleged treatment of Student 2, even alongside a live warning for later conduct, fell outside the band of reasonable responses. That was a permissible application of section 98(4) of the Employment Rights Act 1996, not substitution of the Tribunal’s own view.

4. The Tribunal gave no substantive reasoning for the maximum 25% Acas uplift. It failed to analyse the statutory conditions under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992, including whether there had been an unreasonable failure to comply with the Code and whether an uplift was just and equitable. That issue was remitted.

• Employment Appeal Tribunal: Allowed the University’s appeal in part in [2024] EAT 159. The unfair-dismissal finding was upheld. The harassment finding was set aside without remission. Victimisation and the section 207A uplift were remitted to a differently constituted Employment Tribunal.

• Employment Tribunal: Judgment sent on 23 November 2021 and amended on 17 January 2022. It upheld unfair dismissal, harassment and victimisation claims, and awarded a 25% Acas uplift subject to a 25% contributory-conduct reduction.