Patrick Arthur-Badoo v Guy’s & St Thomas’ NHS Foundation Trust

An employer may make a contractual deduction from wages under a suspension policy only if the policy’s stated precondition is met. Where the policy requires reasonable evidence that the employee lacks a right to work in the United Kingdom, the tribunal must assess the material available to the employer. Repayment does not render a deduction claim academic where declaratory relief or compensation for consequential loss remains available.

For indirect race discrimination, a tribunal must determine each statutory element, including the relevant pool, comparative group disadvantage and individual disadvantage. It must then decide whether the PCP is a proportionate means of achieving a legitimate aim. A concession in another case which does not address the requirement in section 19(2)(a) does not bind a tribunal.

The claimant was employed by the respondent after providing material which he said established his right to work in the United Kingdom as the spouse of an EU national. The respondent nevertheless required further Employer Checking Service checks and suspended him without pay when a further check had not been completed. The deducted pay was later repaid.

The Employment Tribunal dismissed complaints of unauthorised deduction from wages, indirect race discrimination and direct marriage discrimination. Its judgment and reasons were sent on 29 July 2021. The claimant appealed, contending that the tribunal had not properly addressed his evidence, the statutory requirements for indirect discrimination, or the marital-discrimination complaint.

The central issue was whether the tribunal’s incomplete reasoning made its dismissal of those complaints unsafe.

1. Appeal allowed. The Employment Tribunal’s judgment was unsafe. It appeared incomplete and did not properly engage with material issues raised by the claimant, including on reconsideration. The complaints were remitted for determination afresh by a differently constituted tribunal.

2. Under section 13 of the Employment Rights Act 1996, paragraph 4.3 of the respondent’s suspension policy could authorise a deduction only if the respondent had reasonable evidence that the claimant was not entitled to work in the United Kingdom. The tribunal did not determine whether the documents supplied at the outset, and subsequently relied on by the claimant, established that he had that right. Signing a contract which referred to ECS checks did not remove the need to determine that issue.

3. The deduction claim was not academic merely because the withheld wages had been repaid. If well founded, it could result in a declaration and compensation for consequential financial loss under section 24 of the Employment Rights Act 1996.

4. The tribunal failed to apply the statutory analysis required by section 19 of the Equality Act 2010. It did not adequately determine whether the alleged PCPs were applied to the relevant groups, whether persons sharing the claimant’s racial characteristic suffered particular disadvantage, whether he suffered that disadvantage, or whether the means adopted were proportionate. Its justification reasoning raised, but did not answer, the questions of appropriateness and reasonable necessity.

5. Badara provided some support for reconsidering the indirect-discrimination complaint, particularly on proportionality. However, its treatment of comparative disadvantage rested on a concession which did not address section 19(2)(a). It was therefore not binding on the tribunal on that point. The EAT declined to substitute dismissal because the claimant, although facing substantial difficulties in formulating a viable claim, had not shown an unarguable claim.

6. The direct marriage-discrimination complaint also required reconsideration. Marital difficulties may in principle found such a claim, but the proper comparator must be in materially similar circumstances apart from marital status. The suggested comparison with an unmarried partner of an EU national did not meet that requirement. A potentially relevant comparison might instead concern another estranged family member with an equivalent right to work.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and remitted the complaints for fresh determination: [2024] EAT 163.

• Employment Tribunal: Dismissed the complaints of unauthorised deduction from wages, indirect race discrimination and direct marriage discrimination after a hearing on 26 and 27 April 2021. Reasons were sent on 29 July 2021.