Stephen Leighton v Renfrewshire Council

For victimisation, the tribunal must identify the specific act relied on and assess whether it was done for the purposes of or in connection with the Equality Act 2010. It is insufficient to reject the claim by reasoning that not every interaction with a disabled person is protected. Causation requires identification of the employer’s true reason or motivation for the detriment. It is not a strict “but for” test. A complaint may be treated as separable from the conduct giving rise to it where the facts support that conclusion. An error concerning the protected act will not justify allowing an appeal if the tribunal’s causation reasoning is legally sound and the two issues are inseparably linked.

The claimant, an employee of Renfrewshire Council, assisted a disabled tenant to move temporarily while repairs were undertaken. He alleged that this assistance was a protected act under section 27 of the Equality Act 2010. After a complaint was made about the assistance and an alleged breach of confidentiality, the claimant was moved to alternative duties to avoid contact with the tenant. The Employment Tribunal accepted that the move was a detriment but dismissed the victimisation claim, holding that the assistance was not a protected act and that the detriment resulted from the complaint rather than the assistance.

The claimant appealed on protected-act and causation grounds. The central issue was whether the tribunal had applied the correct statutory and causation tests.

1. Appeal refused. The appeal failed because the protected-act and causation grounds stood or fell together, and the legally permissible causation finding was sufficient to dispose of the claim.
2. The Employment Tribunal erred in its approach to the protected act. The claimant relied on the specific assistance he provided in moving the tenant, which was outside his ordinary duties and undertaken with managerial permission. The tribunal instead rejected the proposition that every interaction with a disabled person was protected. It failed to engage with the particular act relied upon and its asserted purpose or connection with the Equality Act 2010.
3. The Tribunal did not err in its approach to causation. Read fairly, its conclusion that the claimant was moved because of the complaint identified the employer’s true reason and was consistent with the approach in Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065 (HL). The Tribunal had not applied a strict “but for” test.
4. The Tribunal was entitled to regard the complaint as separable from the assistance giving rise to it. The complaint had more than one aspect, including an allegation of breach of confidentiality, and the move was made to prevent contact between the claimant and the tenant. That conclusion was supported by Page v The Lord Chancellor [2021] EWCA Civ 254.
5. Although the protected-act analysis contained an error, the absence of any error in the causation analysis meant that the appeal as a whole had to be refused.

• Employment Tribunal: The claim for victimisation under section 27 of the Equality Act 2010 was unanimously dismissed on 1 February 2024.
• Employment Appeal Tribunal: The appeal was refused.