Aston v The Martlet Group Ltd

A decision to continue, rather than abandon or settle, Equality Act proceedings is capable of being a protected act. A post-employment victimisation complaint must nevertheless satisfy the separate requirements of section 108 of the Equality Act 2010. Conduct must both arise from, and be closely connected with, the former employment relationship.

For section 15, unfavourable treatment has a low threshold and may include denial of a real opportunity or choice. Whether treatment was because of something arising from disability requires a finding about the decision-maker’s motivation. Justification is an objective proportionality assessment and is not answered by the test for unfair dismissal.

The Claimant, a former operations manager, was absent with depression. Following discussions about a possible return to work and alternative work, the Respondent ended his employment in May 2016. A preliminary hearing determined the effective date of termination and dismissed the unfair-dismissal claim as out of time, while extending time for disability-discrimination claims.

At the merits hearing, the Employment Tribunal dismissed claims under section 15 of the Equality Act 2010 and a victimisation claim concerning a £4,000 payment. It treated an earlier preliminary-hearing finding as binding, held that certain alleged treatment was not unfavourable, and did not determine proportionality in relation to dismissal.

The appeal concerned the scope of post-employment victimisation, issue estoppel, unfavourable treatment, causation and proportionality.

1. Appeal allowed in part. The dismissal of the victimisation complaint stood. The dismissal of the three section 15 complaints concerning failure to warn of dismissal, failure to offer a further opportunity to accept an alternative role, and dismissal was quashed and remitted to a differently constituted Tribunal.

2. A decision to continue proceedings is capable of constituting the protected act of bringing proceedings under section 27(2)(a) of the Equality Act 2010. The Tribunal had therefore applied the wrong statutory test to the victimisation complaint. However, the complaint depended on evidence given on oath at the preliminary hearing. That evidence attracted judicial proceedings immunity.

3. The alleged post-employment conduct also fell outside section 108. Although the original goodwill offer arose from the former employment relationship, it was not closely connected with it. The offer had been withdrawn months before the hearing, and the alleged new or renewed offer arose in the distinct setting of cross-examination at that hearing. Without the immune evidence, the victimisation claim was bound to fail.

4. Issue estoppel applies only to an issue necessary to the earlier decision. The preliminary-hearing finding that the Claimant did not wish to return to his original role was not necessary to determining the effective date of termination or time limits. The merits Tribunal therefore erred by treating that finding as binding.

5. The section 15 threshold of unfavourable treatment is low. On its findings, the Tribunal could not lawfully conclude that failing to warn the Claimant that dismissal would follow if no alternative role were found, and failing to give him a real opportunity to accept the revised role, were not unfavourable treatment. It had made no adequate finding on whether the sickness absence materially influenced that conduct.

6. Having found dismissal unfavourable and because of something arising from disability, the Tribunal was required to determine whether dismissal was a proportionate means of achieving a legitimate aim. It did not do so. That assessment is objective and distinct from the unfair-dismissal test.

• Employment Appeal Tribunal: allowed the appeal in part, quashed the dismissal of three section 15 complaints, and remitted them to a differently constituted Employment Tribunal.
• Employment Tribunal, London South: dismissed all disability-discrimination and victimisation claims in a reserved decision promulgated on 3 September 2018.
• Employment Tribunal preliminary hearing: held that the effective date of termination was 17 May 2016; dismissed the unfair-dismissal claim as out of time; and extended time for the discrimination claims.