University of Exeter v Dr Annette Plaut

The Employment Appeal Tribunal held that the Employment Tribunal erred in law in upholding the complaints of harassment and victimisation because it conflated the distinct legal tests for harassment (section 26 Equality Act 2010) and victimisation (section 27 Equality Act 2010). The EAT found the unfair dismissal finding was supportable because the Employment Tribunal permissibly concluded that dismissal fell outside the band of reasonable responses under section 98 Employment Rights Act 1996 and the Burchell approach to misconduct dismissals. The Employment Tribunal failed to analyse properly whether the employer breached the Acas Code and whether any breach was unreasonable for the purpose of the s.207A TULR(C)A uplift; that aspect was remitted for reconsideration.

Background and procedural history:

• This is an appeal from an Employment Tribunal judgment following a hearing in October 2021. The Employment Tribunal's decision was sent to the parties on 23 November 2021 and amended on 17 January 2022. The appeal to the Employment Appeal Tribunal was heard on 17 July 2024 and determined on 1 October 2024.

Nature of the claim and relief sought:

• The claimant brought multiple employment complaints including unfair dismissal, harassment and victimisation arising from suspensions and disciplinary processes, and sought remedies including compensation for unfair dismissal and an uplift under the Acas Code.

Issues framed by the court:

• whether the Employment Tribunal correctly applied the legal tests for harassment (s.26 Equality Act 2010) and victimisation (s.27 Equality Act 2010);
• whether the dismissal was fair under s.98 ERA, including application of the Burchell test and the concept of the band of reasonable responses;
• whether the Employment Tribunal adequately analysed breaches of the Acas Code and whether any breach was unreasonable so as to justify an uplift under s.207A TULR(C)A; and
• whether any factual findings were perverse or required remission.

Court’s reasoning and conclusions:

• The EAT concluded the Employment Tribunal conflated the separate elements of harassment and victimisation, treating protected-act analysis as if it were part of the harassment test and vice versa. Because the elements of the two tests were not kept distinct and were not properly analysed, the findings of harassment and victimisation were unsafe and were set aside.
• On unfair dismissal the EAT accepted the Employment Tribunal’s overall conclusion that dismissal was substantively unfair. Although the Tribunal’s reasoning was at times disordered and it relied on authorities and formulations not fully argued below, a fair reading showed the Tribunal held that the employer’s decision fell outside the band of reasonable responses and that dismissal could not be justified on the misconduct relied on. The EAT therefore upheld the unfair dismissal finding.
• On the Acas uplift the EAT held the Employment Tribunal had given only terse, conclusory reasoning and had failed to analyse which parts of the Acas Code were breached, whether the breaches were unreasonable, and whether an uplift was just and equitable; that failure required remediation and Ground 5 succeeded.
• The EAT declined to reverse minor factual findings or to conclude that any findings were perverse, but remitted limited issues for reconsideration: in particular the victimisation complaint founded on the return-to-work comment of 3 April 2019 and the assessment of any Acas uplift.

Practical implication: the case emphasises the need for tribunals to analyse harassment and victimisation under their distinct statutory tests, to apply the Burchell and band-of-responses principles without substituting their own view for that of a reasonable employer, and to give a structured reasoned analysis when assessing an Acas uplift under s.207A TULR(C)A.

The appeal was allowed in part. The Employment Appeal Tribunal set aside the Employment Tribunal’s findings of harassment and victimisation because the tests were conflated and not properly applied. The EAT upheld the Employment Tribunal’s finding of unfair dismissal, reasoning that dismissal for the misconduct relied upon fell outside the band of reasonable responses under section 98 ERA. The EAT also found that the Employment Tribunal failed to give adequate reasons on the Acas uplift and remitted that issue and the limited victimisation point arising from the 3 April 2019 comment to a fresh Employment Tribunal decision.

The matter originated before an Employment Tribunal sitting at Exeter (hearing October 2021). The Employment Tribunal’s judgment was sent on 23 November 2021 and amended on 17 January 2022. The University of Exeter appealed to the Employment Appeal Tribunal; the appeal was heard on 17 July 2024 and the EAT gave judgment on 1 October 2024 ([2024] EAT 159).