B Sritharan v Deloitte LLP & Anor

Where a tribunal finds that discriminatory treatment affected the process by which an employee was considered for an alternative role and dismissed, it must explain why that treatment does not make the dismissal unfair. Under Employment Rights Act 1996, section 98(4), the assessment requires consideration of all relevant circumstances.

A tribunal must also resolve justification for indirect discrimination by a reasoned proportionality assessment. It must weigh the factors supporting justification against countervailing factors. Where a claimant identifies a comparator and gives evidence of suitability, a respondent’s failure to call evidence uniquely capable of explaining the comparator’s successful appointment may require consideration of whether the burden of proof has shifted.

The appellant, a Technical Director in Deloitte LLP’s cyber-security team, was dismissed in November 2021 for some other substantial reason. The Employment Tribunal found an irretrievable breakdown in workplace relationships and no suitable alternative role. It dismissed most claims, but upheld two claims of discrimination arising from disability concerning the appellant’s application for an alternative role and delay in a permanent-health-insurance referral.

The appellant appealed the dismissal of her remaining claims and the finding that her dismissal was fair. The central issues included the treatment of alleged PCPs, the omission of a justification analysis, the relevance of discriminatory treatment to unfair dismissal, and whether the tribunal had properly addressed the burden of proof in the race-discrimination claim concerning the alternative role.

1. Appeal allowed in part. Grounds 2, 3, 7 and 10 disclosed errors of law. Grounds 1, 4, 5, 8 and 9 failed; ground 6 was withdrawn.

2. The Employment Tribunal did not make inconsistent findings about the alleged PCPs. Read as a whole, its findings treated the relevant delays and assignments as particular factual situations rather than a state of affairs capable of amounting to a PCP. Its approach was consistent with Ishola.

3. The tribunal erred by purporting to dismiss the discrimination-arising claim concerning delay in an occupational-health appointment after expressly finding that it succeeded. It made no finding that the claim was out of time.

4. Having found a PCP, group disadvantage and individual disadvantage in the indirect-disability-discrimination claim, the tribunal had to determine justification. A proportionality assessment required reasoned balancing. The absence of that analysis could not be supplied by inferring a conclusion from other findings.

5. In deciding unfair dismissal, the tribunal had considered the alternative-role process merely as an imperfect mistake. It failed to engage with its own finding that the process included discriminatory unfavourable treatment and with other findings of discrimination. It therefore failed adequately to explain why those matters did not affect fairness under section 98(4).

6. On the direct-race-discrimination claim, the appellant identified the successful white comparator and gave evidence that she was well qualified but was not interviewed. The respondent called no evidence explaining the successful application. The tribunal could not safely assume that the appellant was rejected on merit without considering whether the burden of proof had shifted and whether an inference should be drawn.

7. Most factual findings were preserved. Findings concerning the alternative-role recruitment process, the relevant discrimination-arising issue, and unfair dismissal were not preserved. The remaining issues were remitted to a differently constituted tribunal because they were critical and there was a real risk of a second bite.

• Employment Appeal Tribunal: Appeal allowed in part and remitted to a differently constituted Employment Tribunal: [2025] EAT 5.
• Employment Tribunal, London Central: Judgment sent to the parties on 12 September 2022. Most claims were dismissed; two claims of discrimination arising from disability succeeded.