Dr B Jones v Viiv Healthcare UK Limited

The burden-of-proof inquiry under section 136 of the Equality Act 2010 is fact-sensitive. It must not be resolved by mechanically applying a general rule about an individual factual feature, including the use of language said to reflect a racial or sex stereotype.

Words such as aggressive, hostile and direct are not inherently discriminatory. A tribunal must nevertheless consider, in the full factual context, whether their use was materially influenced by stereotyping. Where the tribunal makes sustainable positive findings about the actual reasons for the treatment, it need not apply section 136 through a rigid two-stage exercise.

The claimant, a Black woman formerly employed in a senior pharmaceutical role, brought claims of direct race and sex discrimination and victimisation against her employer and individuals. The Employment Tribunal dismissed all claims after a lengthy hearing.

Her appeal concerned the dismissal of complaints relating to descriptions of her behaviour, a recruitment investigation, her suspension, dismissal and dismissal appeal. She contended that stereotypical language, the seriousness and timing of allegations, and the breakdown in relationships required the burden of proof to shift under section 136 of the Equality Act 2010.

The central issue was whether the Tribunal had erred in its approach to the burden of proof and in its assessment of stereotyping and victimisation.

1. Appeal dismissed. The Tribunal had accurately directed itself on sections 13, 27 and 136 of the Equality Act 2010. Its conclusions did not rest solely on a failure by the claimant to establish facts capable of shifting the burden. It made positive findings about what occurred and why.

2. Section 136(2) does not prescribe which facts will satisfy its threshold. The inquiry is necessarily fact-sensitive and cannot be conducted by applying a generalised rule of thumb. A feature which contributes to a burden shift in one case does not create a rule that the same feature will do so in every later case.

3. Stereotyping can constitute direct discrimination where an adverse evaluation is materially influenced by a generalised belief about persons sharing a protected characteristic. However, the descriptions aggressive, hostile and direct are not, in themselves, racial or sexist slurs. Their significance depends on the whole evidential context. The essential question is whether the Tribunal properly considered the language and the light it may cast on the reason for the treatment.

4. The Tribunal had done so. It considered the claimant’s allegation that she had been stereotyped as a Black woman, examined the relevant language in the 360 review, investigation, suspension, dismissal and appeal processes, and made sustainable findings that the concerns reflected evidence from several colleagues rather than stereotypes. It was entitled to consider the consistency of complaints from multiple sources, while recognising that another factual matrix might support an inference of group-think, bias or collusion.

5. The Tribunal also made complete positive findings that the recruitment investigation arose from valid, evidence-based concerns and that suspension and dismissal followed an evidenced irretrievable breakdown in working relationships. It found that neither the claimant’s race, sex nor protected acts materially influenced those decisions. Those findings answered the victimisation complaints.

• Employment Appeal Tribunal: Appeal dismissed: [2026] EAT 24.
• Employment Tribunal (London South): Dismissed the claimant’s discrimination, victimisation and other complaints in a reserved decision. No citation was stated.