L Humby v Barts Health NHS Trust

The Employment Appeal Tribunal allowed the appellant's appeal and remitted the case for a complete re‑hearing because the Employment Tribunal erred in law on multiple procedural and substantive points. Key legal principles engaged included the time limit and continuing act provisions of the Equality Act 2010 (section 123), the burden of proof in discrimination/victimisation claims (section 136 EA 2010), the law on amendment and case management (Selkent; Vaughan), the Shamoon test for detriment, and the tests for repudiatory breach, affirmation and constructive dismissal (including Hogg v Dover and Cockram). The EAT found errors in the preliminary refusal to permit amendments, in the conclusion that certain earlier detriments were not part of a continuing course of conduct, in the Tribunal's sequencing of issues (deciding constructive dismissal before victimisation), in failure to consider evidence "in the round" under s 136 EA 2010, in application of the Shamoon detriment test, in interruptions to cross‑examination that caused material unfairness, and in treating the unilateral re‑banding and pay reduction as not breaching express contractual terms. For these reasons the panel remitted the whole matter to a fresh tribunal.

Parties and subject: Mr Humby (claimant/appellant) v Barts Health NHS Trust (respondent). Employment claims concerned constructive unfair dismissal (Employment Rights Act 1996) and victimisation under the Equality Act 2010 arising from a departmental restructure and earlier management decisions.

Procedural posture: Appeal to the EAT against (1) a preliminary hearing decision of Employment Judge Russell (oral 2 June 2021; reasons sent 14 July 2021) refusing certain amendment applications and striking out earlier alleged detriments as out of time; and (2) the reserved final hearing judgment of Employment Judge O’Brien and two panel members (hearings Sept/Dec 2021; reasons sent 29 July 2022) which dismissed all claims. Permission to appeal had been granted by HHJ Tayler.

Nature of claim and relief sought: The claimant sought declarations and remedies for constructive unfair dismissal (he had resigned in response to being reassigned from Band 6 to Band 5) and remedies for victimisation in relation to removal of managerial duties, placement on a performance process and events in a subsequent restructure. He also sought to amend pleadings to add victimisation allegations related to applications for specific posts in the restructure.

Issues framed: Whether the preliminary tribunal erred in refusing amendments and in holding earlier detriments were out of time (application of s 123 EA 2010 and continuing act doctrine); whether the final tribunal erred in (a) taking the constructive dismissal claim before the victimisation claims and failing to consider key elements of victimisation, (b) misapplying the burden of proof under s 136 EA 2010 and the Shamoon test for detriment, (c) wrongly construing the respondent’s internal Managing Change policy, (d) failing to treat the unilateral re‑banding/pay reduction as breaching express contractual terms, and (e) misapplying principles on affirmation of contract and Hogg v Dover‑type actual dismissal analysis.

Decision and reasoning (concise):

• The EAT held the preliminary judge erred by refusing proposed amendments on the basis that different witnesses would be required and by failing to recognise that the factual foundation of the proposed amendments was integral to the claims already pleaded; the same decision‑makers were involved throughout the relevant period and the disputed conduct could form part of a continuing course of conduct. (Selkent; Vaughan; Hendricks.)
• The EAT held the preliminary judge wrongly concluded there was no arguable continuing act for the September 2018 removal of managerial duties and the January 2019 performance process; on the facts there was an arguable continuing course of conduct so the time point should be reserved to final hearing. (s 123 EA 2010 authorities applied.)
• The final tribunal erred by deciding constructive dismissal before fully addressing victimisation, thereby failing to consider the claimant’s primary victimisation plank (whether the demotion to Band 5 was an act of victimisation) and failing to assess all evidence in the round under s 136 EA 2010. It also did not apply the Shamoon test correctly when assessing detriment and failed to consider unconscious or indirect motivations.
• The tribunal’s management of cross‑examination of a key witness caused material unfairness to the litigant in person in the particular circumstances and the interruptions had a real effect on the claimant’s ability to put central lines of inquiry (Serafin applied).
• The tribunal erred in law in concluding the unilateral demotion and attendant pay reduction were not breaches of express contractual terms and therefore its finding that there was no repudiatory breach was unsafe; it also failed to address whether the facts required consideration of an actual dismissal under Hogg v Dover. The tribunal misapplied Cockram when finding affirmation from the claimant’s limited willingness to extend notice without considering context.

Disposition: The EAT remitted the claims for a full re‑hearing before a fresh tribunal, with directions that the earlier detriments be treated as potentially continuing and that the amendment and time issues be addressed afresh.

Remitted. The EAT allowed the appeal in part and remitted the case for a complete re‑hearing because the Employment Tribunal erred in law in multiple respects: refusing amendments on an incorrect factual basis, wrongly finding no arguable continuing act (s 123 EA 2010), missequencing issues such that victimisation was not properly considered, failing to apply the burden of proof of s 136 EA 2010 and the Shamoon detriment test correctly, causing material unfairness by interrupting cross‑examination of the litigant in person, and failing to treat a unilateral rebanding and pay reduction as breaching express contractual terms (with related errors on affirmation and Hogg v Dover analysis). These errors rendered the Tribunal’s determinations unsafe and a re‑hearing before a fresh tribunal was ordered.

Appeal to EAT against: (1) preliminary judgment of Employment Judge Russell (preliminary hearing 2 June 2021; written reasons sent 14 July 2021) refusing certain amendment applications and striking two earlier detriments as out of time; and (2) reserved final hearing judgment of Employment Judge O’Brien sitting with Mrs B Saund and Ms S Harwood (hearings 16-17 September 2021 and 2 December 2021; reasons sent 29 July 2022) which dismissed all claims. Permission to appeal granted by HHJ Tayler at a Preliminary Hearing on 21 December 2022. This judgment of the EAT is Neutral Citation [2024] EAT 17 (Judge Stout, 21 February 2024).