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

The Employment Appeal Tribunal found the Employment Tribunal's liability judgment unsafe and remitted the claims for redetermination because it had failed properly to determine complaints of unauthorised deduction from wages, indirect race discrimination and direct discrimination arising from marital status. The central legal issues concerned whether the respondent had "reasonable evidence" that the claimant was not entitled to work in the United Kingdom such that paragraph 4.3 of its suspension policy authorised a deduction (Employment Rights Act 1996, section 13); and whether the requirement for a positive ECS check, and the respondent's approach to proof of right to work, amounted to a discriminatory provision, criterion or practice under section 19 of the Equality Act 2010 and, if so, whether it was a proportionate means of achieving a legitimate aim. The EAT concluded the Employment Tribunal did not analyse the claimant's evidence about his right to work or properly address group disadvantage and proportionality, and failed to engage with the claimant's application for reconsideration; accordingly the decision was set aside and the matter remitted to a differently constituted tribunal.

Background and parties. The appellant employee claimed he had a right to work in the United Kingdom as a spouse of an EU national but was required by the respondent employer to undergo Employer Checking Service (ECS) checks, was suspended without pay when a new ECS check was not produced, and suffered deductions from wages. He pursued complaints at the Employment Tribunal of unauthorised deduction from wages, indirect race discrimination and direct discrimination arising from marital status. The Employment Tribunal (Employment Judge Martin with lay members) heard the matter on 26–27 April 2021 and sent its judgment on 29 July 2021. The appellant appealed to the Employment Appeal Tribunal.

The claimant sought declarations and remedies in respect of an unlawful deduction from wages and compensation for consequential financial loss, and remedies for alleged discrimination under the Equality Act 2010.

Issues framed by the court. The EAT identified the principal issues to include: (i) whether the respondent had reasonable evidence that the claimant was not entitled to work in the UK, such that deductions under the suspension policy were authorised (Employment Rights Act 1996, sections 13, 23 and 24); (ii) whether the respondent applied one or more provisions, criteria or practices (PCPs) — in particular the requirement for a positive ECS check and a requirement to accept only documents producing a statutory excuse — that disadvantaged a group sharing the claimant's protected characteristic, and if so whether those PCPs were a proportionate means of achieving a legitimate aim (Equality Act 2010, section 19); and (iii) whether conduct by the respondent relating to the claimant's estrangement from his spouse could found a direct discrimination claim on marital status.

Court’s reasoning and disposition. The EAT found multiple material deficiencies in the Employment Tribunal's reasoning: the tribunal did not properly analyse the claimant's documentary evidence and assertions that he had a right to work and therefore was not required to undergo ECS checks; it did not determine whether the respondent had "reasonable evidence" that the claimant lacked a right to work; it did not identify or analyse the relevant comparison group or whether the PCP placed that group at a particular disadvantage; and its consideration of justification and proportionality was incomplete. The EAT also found procedural defects in the treatment of the claimant's application for reconsideration and inconsistencies in the judgment's form. For these reasons the appeal was allowed, the liability judgment was set aside and the claims were remitted to a differently constituted Employment Tribunal for redetermination. The EAT invited the parties to consider alternative resolution, including judicial mediation.

The appeal was allowed and the Employment Tribunal's liability judgment was set aside because it was unsafe and failed properly to determine key issues. The EAT remitted the complaints of unauthorised deduction from wages, indirect race discrimination and direct discrimination (marital status) to a differently constituted Employment Tribunal for redetermination, identifying that the earlier panel had not properly analysed the claimant's evidence of his right to work, the question whether the employer had reasonable evidence to require ECS checks, the correct comparison group for indirect discrimination and the justification/proportionality analysis.

Appeal from an Employment Tribunal judgment (Employment Judge Martin with lay members) after a hearing on 26–27 April 2021; liability judgment sent 29 July 2021. Appeal heard and determined by the Employment Appeal Tribunal, [2024] EAT 163, which allowed the appeal and remitted the matter to a differently constituted Employment Tribunal.