Jacqui McLean v Vallourec Oil & Gas UK Ltd

Under section 15 of the Equality Act 2010, an employer’s explanation must identify a reason that was operative when the unfavourable treatment occurred. A belief formed only after a dismissal decision cannot explain that earlier decision. Where the employer’s only proposed reason is inconsistent with the tribunal’s findings about when the relevant issue arose, it has not discharged the burden of explaining why the claimant was treated unfavourably.

A tribunal also breaches natural justice if it decides a Polkey reduction without giving the parties a meaningful opportunity to address the issue, where useful submissions or evidence could have been provided. The EAT may substitute a finding where only one realistic outcome remains and remit the Polkey assessment for a chance-based determination.

Jacqui McLean worked as a financial assistant for Vallourec Oil & Gas UK Ltd. Because fibromyalgia restricted her mobility, she worked from home. The company selected her role for redundancy as part of a restructuring. The Employment Tribunal found the dismissal unfair for inadequate consultation, but dismissed her disability discrimination claims. It also found that she would have been dismissed in any event, affecting her potential compensation.

McLean appealed the dismissal of her claim under section 15 of the Equality Act 2010, arguing that the company’s stated reason could not have operated when the dismissal decision was made. She also challenged the tribunal’s Polkey findings because that issue had not been raised for determination at the liability hearing. The central questions were whether the company had discharged its burden on causation and whether the tribunal could decide the Polkey issue without hearing from the parties.

1. Section 15 causation. The Employment Tribunal accepted that McLean’s need to work from home arose in consequence of her disability and that she had established facts requiring the company to explain the unfavourable treatment. The company therefore had to show that the dismissal was in no sense because of that need. The relevant inquiry concerned the reason in the decision-maker’s mind; the reason had to be operative when the dismissal decision was taken. The approach in Pnaiser v NHS England [2016] IRLR 170 and the summary in Bodis v Lindfield Christian Care Home [2024] EAT 65 informed that analysis.
2. The company relied on its belief that McLean could not perform the Finance Accountant role. The tribunal’s findings showed that the relevant vacancy arose only after the Finance Accountant resigned, during McLean’s notice period. The EAT held that a belief formed after the dismissal decision could not have been an operative reason for that decision. The tribunal had confused the timeline and relied on an irrelevant consideration. Its conclusion was illogical and perverse. The EAT distinguished Charlesworth v Dransfelds Engineering Services Ltd (unreported, 12 January 2017 (Simler J)): there, disability-related absence brought the redundancy into focus, whereas here the alleged relevant factor arose after the redundancy decision.
3. Substitution. The company had advanced no other reason capable of discharging the burden. The EAT considered there was only one realistic outcome, followed the approach in Jafri v Lincoln College [2014] IRLR 544, and substituted a finding that the section 15 claim succeeded. The tribunal’s findings also made it difficult to see how the company could establish lack of knowledge under section 15(2). The EAT further considered that the pleaded cost-reduction aims did not amount to an arguable justification on the case as pleaded.
4. Polkey and natural justice. Although the company had pleaded reliance on Polkey, the issue was absent from the agreed list of issues and was not raised at the liability hearing. The parties made no submissions on it. Applying Neale v Hereford and Worcester County Council [1986] ICR 471 and Market Force v Hunt [2002] IRLR 863, the EAT held that deciding the issue without notice and an opportunity to respond breached natural justice. The outcome was not inevitable because the parties could have provided useful evidence and submissions about continued homeworking and possible reorganisation.
5. Remittal. The Polkey assessment was remitted to the same Employment Tribunal for the quantum hearing. It must assess the percentage chance of McLean retaining her role if homeworking had been permitted and duties reorganised, including the possibility of support and training. Following Sinclair Roche & Temperley v Heard [2004] IRLR 763, the EAT considered the additional cost of a fresh tribunal disproportionate, there had been no inordinate delay or substantial risk of pre-judgment, and the earlier hearing was not wholly flawed.

1. Employment Appeal Tribunal — In [2026] EAT 133 , allowed the appeal on the section 15 causation ground and the challenge to the Polkey findings. It substituted a finding that the section 15 claim succeeded and remitted the Polkey assessment to the same Employment Tribunal.
2. Employment Tribunal, Glasgow — After a hearing on 3–5 June 2025, judgment sent 16 June 2025, found the dismissal unfair for inadequate consultation, dismissed the disability discrimination claims, and concluded that the claimant would have been dismissed no later than she actually was. No citation for the Tribunal judgment is stated in the judgment.