Kemsley v Cambridgeshire County Council

An Employment Tribunal must give reasons which show that it has independently and even-handedly evaluated the parties’ material cases. Extensive unacknowledged reproduction of one party’s evidence or submissions, coupled with no engagement with the other party’s evidence and focused submissions, may make its decision unsafe.

For victimisation under Equality Act 2010, detriment is a broad concept. Treatment which a worker might reasonably regard as worsening their position or placing them at a disadvantage is capable of being detrimental; an unjustified sense of grievance is insufficient. A tribunal must also determine a properly advanced contention that a decision-maker acted on tainted information, and must address material contextual submissions on discrimination and harassment claims.

The appellant had been employed as a data inputter by the respondent council. Following a redundancy process, her employment ended in October 2019.

The Employment Tribunal dismissed her claims for unfair dismissal, victimisation arising from a protected act, direct age discrimination and harassment related to sex. It also dismissed her application for reconsideration. She appealed, alleging, among other matters, inadequate reasons, erroneous findings on detriment and knowledge, failure to determine a tainted-information victimisation case, and failures to address material evidence and submissions concerning harassment and age discrimination.

The central issue was whether the Tribunal’s extensively copied reasons demonstrated a proper judicial evaluation of the appellant’s case and the essential issues.

1. Appeal allowed. The Employment Tribunal’s decision was set aside and all claims were remitted for rehearing before a differently constituted Tribunal.

2. The Tribunal erred in holding that none of the alleged incidents could amount to detriment for victimisation purposes. The statutory concept is broad. Calls for dismissal and personal insults were plainly capable of placing the appellant at a disadvantage. The Tribunal gave no adequate explanation for rejecting the respondent’s clear concessions that several incidents were allegations of detriment, or for treating dismissal and rejection of an appeal as non-detrimental.

3. The Tribunal failed to determine the appellant’s clearly advanced contention that the manager who dismissed her, although unaware of the protected act, had been influenced by information from a colleague who knew of it. A failure to put a point to a witness did not entitle the Tribunal simply to refuse the finding sought. It required appropriate case management and reasons.

4. The finding that the appellant had not seen the offensive email was perverse because the unchallenged evidence was that she received it through a data subject access request. The Tribunal also failed to address her contextual case that the email could be related to sex. Its treatment of the age-discrimination claim likewise did not explain why her evidence and submissions concerning redeployment, suitability and comparison were rejected.

5. Although copying a party’s material is not invariably decisive, the extensive unacknowledged adoption of the respondent’s material, the absence of engagement with the appellant’s evidence and submissions, and the identified errors meant the EAT could not safely conclude that the Tribunal had independently evaluated the essential issues. Its findings on motivation and knowledge could not stand separately.

• Employment Appeal Tribunal: allowed the appeal, set aside the Tribunal’s dismissal of all claims, and remitted the case for rehearing before a differently constituted Tribunal.
• Employment Tribunal: dismissed the claims on 4 August 2022. It dismissed the appellant’s reconsideration application on 7 February 2023.