Hollinghurst v James Hall & Co Ltd

Contrary to a common misperception, a tribunal must first find that the employerommitted the act complained of before the statutory shifting of the burden of proof operates. Instead of displacing the claimantrom the primary task of proving the basic facts, section 48(2) Employment Rights Act 1996 and section 136 Equality Act 2010 only require the employer to explain the reason for an act once the tribunal has found facts allowing an inference of an unlawful reason.

The claimant appealed from an Employment Tribunal judgment dismissing complaints of pregnancy-related disadvantage and detriment arising from a return-to-work meeting. The ET found no formal disciplinary warning and concluded that any remark was general guidance not linked to pregnancy-related absence. The appeal argued that the ET misapplied the statutory burden-shifting provisions in Employment Rights Act 1996 and Equality Act 2010, and erred in its approach to what constitutes a detriment. The EAT reviewed the facts and the ET pplication of the shifting burden rules and determined the central question of whether the ETrred in law on burden and detriment.

(1) Appeal dismissed. The Employment Appeal Tribunal found no error in the Employment Tribunal ecision and dismissed the appeal.

(2) Preliminary requirement for burden shift. The Tribunal must first make factual findings establishing the act complained of. Only if facts exist from which, in the absence of any other explanation, discrimination could be inferred does section 136 Equality Act 2010 require the tribunal to draw that inference and place an evidential burden on the respondent to explain the reason for the act. If the act is not established, the employerarries no burden to explain (paras [8], [9], [23], [24]).

(3) Application of section 48(2) Employment Rights Act 1996. The ET correctly stated the statutory position that, where engaged, the burden is on the employer to show the reason for an act or deliberate failure to act. That statutory rule only arises where the tribunal has first established the relevant act or treatment (para [8]; para [23]).

(4) Treatment/detriment analysis. The tribunal made permissible findings of fact that no formal disciplinary verbal warning was given. The remarks were found to be colloquial guidance and not to have placed the claimant at a disadvantage related to pregnancy. On those findings there was no causal link to pregnancy-related absence and therefore no detriment within the statutory provisions (paras [22], [23], [26]).

(5) Use of authorities. The EAT adopted the reasoning in [2017] EWCA Civ 1913 (Ayodele) on the two-stage approach under section 136. The tribunal id not err in law in its overall approach and its factual conclusions were open to it (para [25]).

(6) Disposition: the appeal is dismissed. No remittal was ordered.

• Employment Appeal Tribunal: Appeal heard and dismissed by HHJ Martyn Barklem (sitting alone), reversing no earlier appellate court decision; EAT considered the Employment Tribunal decision of Manchester (Employment Judge Slater with lay members) dated 21 December 2016 and the Rule 3(10) leave decision by HHJ Eady QC permitting a full hearing (see paras [11]-[13]).