B Sritharan v Deloitte LLP & Anor

This Employment Appeal Tribunal allowed aspects of the appellant's appeal and remitted parts of the case to a differently constituted Employment Tribunal. The EAT held that the Employment Tribunal erred in law by failing to explain adequately why processes found to be discriminatory (relating to internal recruitment and failure to refer to permanent health insurance and occupational health) did not render the dismissal unfair under section 98(4) of the Employment Rights Act 1996. The ET also failed to consider whether the burden of proof had shifted where the appellant identified a specific comparator who was successful in securing the alternative role, and the respondents adduced no evidence about the comparator's recruitment.

The EAT identified other errors of law, including failures to address limitation/ time issues properly, to carry out the justificatory balancing required for indirect discrimination under section 15 of the Equality Act 2010, and to explain its treatment of alleged provisions, criteria or practices (PCPs) and reasonable adjustments. Most factual findings were preserved, but specified findings were set aside and remaking was ordered.

Background and procedural posture: The appellant, a Technical Director employed in Deloitte's cyber security team, appealed to the Employment Appeal Tribunal against an Employment Tribunal judgment (sent to the parties on 12 September 2022) that dismissed most of her claims including direct race discrimination, victimisation, indirect disability discrimination, discrimination arising from disability, failures to make reasonable adjustments and unfair dismissal, save for two issues on discrimination arising from disability. Permission to appeal on amended grounds was granted following preliminary hearings (permission dated 12 October 2023).

Nature of the proceedings and relief sought: The appeal challenged the ET's legal and factual reasoning across ten headline grounds. The appellant sought remaking of specified issues and ultimately a re-hearing by a differently constituted tribunal in respect of errors identified.

Issues framed by the EAT:

• whether the ET had correctly identified and applied the concept of provision, criterion or practice (PCP), including whether a delay or adjournment could amount to a PCP;
• whether certain findings were inconsistent or internally contradictory (including on PHI referral and HR intervention in recruitment);
• whether the ET addressed time/limitation questions properly;
• whether the ET carried out the required justification balancing for indirect discrimination under section 15 Equality Act 2010;
• whether the ET should have drawn an adverse inference or treated the burden of proof as shifted where the respondent adduced no evidence about a named successful comparator; and
• whether the ET had taken into account findings of discriminatory acts when assessing fairness of dismissal under section 98(4) ERA 1996.

Reasoning and conclusions: The EAT read the ET's reasoning as a whole and rejected several consistency challenges, but found material legal errors. The ET had (i) failed to resolve whether a particular allegation was out of time (para [5.1.8]) and thus erred in law by both accepting and purporting to dismiss that claim; (ii) failed to engage in the proportionality/justification exercise required for indirect discrimination; (iii) failed to consider whether the burden of proof shifted when the appellant identified a named comparator and the respondent adduced no evidence about the comparator's recruitment; and (iv) failed adequately to explain why findings of discriminatory treatment (for example in relation to the CPO role and PHI/occupational health delays) did not bear on the fairness of dismissal. The EAT preserved most factual findings but set aside particular paragraphs and remitted the case for remaking by a differently constituted Tribunal because the errors affected critical issues, notably unfair dismissal and comparator evidence.

Practical note: The EAT emphasised that tribunals should explain the weighing of factors when addressing justification and must consider whether the burden of proof has shifted where missing respondent evidence relates to a named comparator.

Remitted. The Employment Appeal Tribunal found material errors of law in the Employment Tribunal's judgment — including failures to explain why discriminatory aspects of the recruitment and welfare processes did not make dismissal unfair, failure to undertake the justificatory balancing for indirect discrimination under the Equality Act 2010, a failure to address whether a claim was in time, and a failure to consider whether the burden of proof had shifted in respect of a named comparator. The EAT preserved most factual findings but set aside specified paragraphs and remitted the critical issues to a differently constituted Employment Tribunal for remaking.

Appeal to the Employment Appeal Tribunal from an Employment Tribunal judgment (sent 12 September 2022). Permission to appeal on amended grounds was granted following preliminary hearings; permission dated 12 October 2023 (amended grounds lodged 21 November 2023). The EAT delivered judgment 9 January 2025 remitting specified issues to a differently constituted Employment Tribunal.