H Fullah v Medical Research Council & Ors

In a victimisation claim, the question is whether a protected act was an effective cause of the detriment. Where an employer relies on a breakdown in working relations, the tribunal must determine whether that breakdown arose substantially from the protected act or solely from features properly separable from it.

An employee does not lose protection merely because discrimination allegations fail, unless the statutory bad-faith exception applies. On remission, an Employment Tribunal has jurisdiction only to decide the questions specified in the remitting order. It commits an error of law if it substitutes a different causation question and fails to decide the issue remitted.

The claimant, a former employee of the Medical Research Council, brought complaints of victimisation under the Equality Act 2010. His protected acts included two earlier Employment Tribunal claims. He was suspended shortly after the second claim was dismissed and was later dismissed because the employer considered the working relationship had irretrievably broken down.

The original tribunal rejected the victimisation complaints. On a first appeal, HHJ Shanks held that suspension was a detriment and remitted the causation issue. The tribunal was directed to decide whether features said to justify suspension or dismissal were properly separable from the protected acts. On remission, the tribunal again dismissed the claims. The central issue was whether it had answered the remitted question.

1. Appeal allowed. The Employment Tribunal did not determine the issue remitted to it. Its jurisdiction was confined by the remitting order, which required it to decide whether the breakdown in working relations was substantially caused by the claimant having brought Employment Tribunal proceedings, or only by features properly separable from those protected acts.

2. The tribunal instead asked whether the protected acts contributed to suspension and dismissal. It then treated the breakdown in relations as the reason for the treatment. That approach repeated the error identified on the first appeal. The breakdown was the agreed starting point, not an answer to whether its cause was protected activity or separable conduct.

3. Applying Martin v Devonshires Solicitors, conduct connected with a protected complaint may sometimes be treated as separable from the complaint itself. The distinction must be drawn carefully. Tribunals should be slow to treat ordinary unreasonableness, intemperate language or inaccuracies in making a complaint as separable, because that would undermine protection against victimisation.

4. The fact that discrimination allegations were unsuccessful did not remove the claimant from the protection of section 27. Further, concern that he might bring future discrimination claims could amount to a belief that he may do a protected act within section 27(1)(b).

5. The burden of proof was not the remitted issue and was of little relevance. The tribunal appeared to have referred to non-discriminatory reasons, rather than addressing whether protected acts played a part in the decision-makers’ reasoning. The case was remitted to a differently constituted tribunal on the original terms. The previous tribunal’s failure to answer the key question was a fundamental error.

• Employment Appeal Tribunal: This appeal was allowed and the victimisation causation issue was remitted to a differently constituted Employment Tribunal: [2026] EAT 28.

• Employment Appeal Tribunal: HHJ Shanks allowed the claimant’s earlier appeal in part, held that suspension was a detriment, and remitted the question whether suspension and dismissal were because of protected acts. The tribunal was directed to consider whether related features were properly separable from the protected acts.

• Employment Tribunal, Cambridge: The original tribunal dismissed the victimisation complaints. On the first remission, the same tribunal again dismissed them. That remitted decision was set aside by this appeal.