Kemsley v Cambridgeshire County Council

The Employment Appeal Tribunal allowed the appeal and remitted the claims to a differently constituted Employment Tribunal because the ET’s written reasons were largely copied from the Respondent’s witness evidence and submissions and contained little or no engagement with the Appellant’s evidence or submissions. The EAT held that the ET’s approach meant it had not performed a proper judicial evaluation of the essential issues.

The ET’s dismissal of the victimisation claim under section 27 of the Equality Act 2010 was inadequately reasoned: the ET wrongly concluded that none of a number of incidents amounted to a detriment, despite concessions by the Respondent that several incidents were detrimental, and it did not properly address causation. The ET also failed to rule on a contention that dismissal was influenced by "tainted information" from another employee (the Jhuti issue), and it made perverse findings about whether the Appellant saw an offensive email and whether that email amounted to harassment related to sex. The ET’s treatment of the age discrimination and unfair dismissal issues lacked sufficient engagement with the Appellant’s evidence and submissions, making its conclusions unsafe.

Background and parties. The Appellant, employed since 2007 as a data inputter for the Respondent’s Archives Service, brought claims following formal redundancy in 2019: unfair dismissal; victimisation for having carried out a protected act (emails indicating she would raise a grievance alleging sex discrimination); direct age discrimination in relation to dismissal; and harassment related to sex arising from an offensive email calling her "sour and bitter".

Procedural posture. The ET (EJ Postle with lay members) heard a six-day hearing in January 2022 and dismissed all claims in a written decision dated 4 August 2022; an application for reconsideration was dismissed on 7 February 2023. The Appellant appealed to the EAT.

Issues before the EAT. The EAT considered whether the ET had given adequate reasons and performed a proper judicial evaluation; whether particular incidents constituted "detriments" for the purposes of victimisation under section 27 Equality Act 2010; whether causation/ motive (including a "tainted information" argument akin to Jhuti) had been adequately addressed; whether the ET erred in finding the Appellant had not seen the offensive email and whether that email could amount to sex-related harassment; and whether the ET had properly considered the age discrimination and unfair dismissal contentions (including redeployment and the genuineness of redundancy consultation under section 98 Employment Rights Act 1996).

Reasoning and findings. The EAT found that a very large proportion of the ET’s reasons were copied from the Respondent’s submissions and witness evidence, with almost no reference to the Appellant’s evidence and closing submissions. This procedural defect undermined confidence that the ET had carried out an independent judicial assessment. On the merits, the EAT held the ET was wrong to conclude that none of the alleged incidents amounted to detriment; the ET failed to give adequate reasons (particularly where the Respondent had conceded some detriments). The ET omitted to determine the tainted information contention and made a perverse factual finding that the Appellant had not seen the offensive email despite uncontested evidence she had received it via a data subject access response; it therefore failed to address the Appellant’s submission connecting that email and other references to her sex. The ET’s findings on age discrimination and unfair dismissal also lacked engagement with the Appellant’s evidence and submissions. For these reasons the EAT allowed the appeal and remitted the claims for rehearing by a differently constituted Employment Tribunal.

Appeal allowed. The EAT held that the Employment Tribunal’s written reasons were substantially copied from the Respondent’s submissions and failed to engage with the Appellant’s evidence; as a result there had been no proper judicial evaluation of the essential issues (including detriment under section 27 Equality Act 2010, the "tainted information"/causation contention, whether an offensive email amounted to sex-related harassment, and age-discrimination contentions). The appropriate remedy was to remit the claims for rehearing by a differently constituted Employment Tribunal.

Appeal from Employment Tribunal decision dated 4 August 2022 (EJ Postle with lay members) dismissing all claims; application for reconsideration dismissed 7 February 2023; permission to appeal proceeded (HH Judge Tayler). Appeal to the Employment Appeal Tribunal resulted in allowance and remittal to a differently constituted ET. (Neutral citation: [2024] EAT 180.)