A FIELD v STEVE PYE AND CO (KL) LIMITED & Ors

This is an appeal against the judgment of Employment Judge Postle, sitting with members, on 27, 28, 29 and 30 July 2020, and in chambers on 18 and 19 August 2020. The claimant brought claims of disability discrimination, victimisation, unfair dismissal, detriment for seeking a contractual variation pursuant to section 80F of the Employment Rights Act 1996 (“ERA 1996”) and detriment for taking time off pursuant to section 57A ERA. The judgment was sent to the parties on 12 January 2021.

I have predominantly taken the facts from the judgment, but will also refer to some of the evidence that was before the employment tribunal but was not referred to in the judgment.

The first respondent is a general accountancy practice. The other respondents worked for the first respondent. The claimant commenced employment with the first respondent as an Accounts Assistant on 12 April 2016. The claimant was disabled by reason of arthritis, carpal tunnel syndrome and ankylosing spondylitis at the material times. The respondents admitted that the claimant was so disabled and that they knew this was the case.

On 11 June 2018, the claimant made what she described as a flexible working application:

The request was to work from home from time-to-time when the claimant's disability required.

The claimant’s request was refused at a meeting on 21 June 2018 because it was said not to be in the best interests of the business.

On 9 August 2018 the claimant took time off work because her grandchild had gone missing for a short period. The grandchild then was cared for by the claimant for a few days. The extent of the respondent’s knowledge about the reason for the claimant’s absence is a matter of dispute, to which I will return.

The claimant told her line manager, Beth Meacham, that she would be returning to the office on Tuesday 14 August 2018. She was not able to do so because she had a flare up of her carpal tunnel syndrome and was signed off sick. The claimant did not return to work before the end of her employment.

On 24 August 2018, Mrs Pye, the third respondent, Company Secretary of the first respondent, wrote to the claimant raising alleged attendance and performance concerns for the first time.

The employment tribunal recorded at paragraph 19:

Thus, the employment tribunal held that a letter raising concerns about the claimant's attendance and performance had been sent because of absences.

The claimant made a written request for reasonable adjustments on 31 August 2018:

The claimant was away on holiday from 3 to 16 September 2018. While on holiday shesustained an injury following a fall that caused her to extend her absence from work. On 14 September 2018, the claimant sent an email to the respondent:

On 8 October 2019 what was described as an ‘informal welfare meeting’ was held at the claimant’s home. The meeting was conducted by an employment consultant, Mark Silvey. The initial part of the meeting was recorded. After the recording stopped, Mr Silvey asked the Claimant how much she would require to resign, and made her an offer of £2,000. Despite the fact that it was specifically referred to in the claimant's closing submissions, the employment tribunal did not record the following comments made by Mrs Pye, about the decision to offer the claimant money to leave the respondent’s employment, when she was asked about the issue during the grievance investigation meeting on 29 November 2018:

The claimant commenced early conciliation on 2 November 2018.

The claimant submitted a grievance on 21 November 2018. The employment tribunal recorded that:

The employment tribunal found as a fact that Mrs Pye decided to gather statements about the claimant's performance from other staff members because the claimant had submitted her grievance:

The employment tribunal did not refer to Mrs Pye’s answer, set out in the claimant’s closing submissions, when asked in cross-examination why she has sought statements from the claimant's colleagues:

That quotation from the cross-examination of Mrs Pye was not said to have been challenged at the employment tribunal by the respondent, and was not challenged in this appeal.

The claimant’s grievance was heard by Paul Baker, an HR Consultant. Mr Baker met with the claimant on 29 November 2018. The claimant complained that reasonable adjustments had not been made for her and about the offer to terminate her employment on 8 October 2018, as was recorded in the claimant's closing submission in the employment tribunal:

Mr Baker also interviewed Mrs Pye. In addition to the comments I have referred to above, in the claimant’s closing submissions in the employment tribunal the following comments were set out that were not referred to in the judgment:

On 23 November 2018, Mrs Pye wrote to the claimant offering to make adjustments including: working from home as and when necessary; modified IT equipment; and relocation to the ground floor. The variation was to be reviewed after 4 or 6 weeks.

The employment tribunal noted that:

The claimant declined an offer of an appointment with occupational health towards the end of November 2018.

On 12 December 2018, the claimant resigned, relying on the complaints about her treatment she had raised in her grievance and asserting that there had been a failure to make reasonable adjustments.

The claim form was received by the employment tribunal on 15 January 2019. Before the hearing started on 27 July 2020 a list of issues had been agreed. Insofar as is relevant to this appeal, it set out the legal components of the claims of discrimination because of something arising in consequence of disability, victimisation, direct disability discrimination and detriment for taking time off pursuant to section 57A ERA. The same detriments were asserted in all of those claims. The detriments were set out in a schedule attached to the list of issues, as follows:

The employment tribunal dismissed all of the claimant’s claims for reasons I will consider later.

The claimant appealed by a Notice of Appeal sealed by the Employment Appeal Tribunal on 16 February 2021. The appeal was considered by HHJ Auerbach on the sift. By an order sealed 30 June 2021 he permitted a number of grounds to proceed raising issues about the following subjects: ground 1, reasonable adjustments; grounds 4 and 6, discrimination because of something arising in consequence of disability; ground 14, victimisation; grounds 15(a), (c) and (d) burden of proof; ground 16, detriment for time off pursuant to section 57A ERA; and, grounds 17 to 20, constructive dismissal.

I suggested to Counsel that I might consider grounds 15(a), (c) and (d) concerning the burden of proof first because there was some overlap with, or possibly knock on consequences for, the other grounds of appeal.

I am grateful for the clear skeletons and concise submissions of Mr Brown and Mr Kohanzad.

Grounds 15(a), (c) and (d) are in the following terms:

In response to these grounds, Mr Kohanzad allowed himself an uncharacteristic rhetorical flourish. Mr Kohanzad said that no appellate judge in the Supreme Court, Court of Appeal or (even) the Employment Appeal Tribunal could conceivably allow these grounds of appeal. Doing so would make new law by establishing an absolute rule of law that primary facts such as there were in this case would always prevent an employment tribunal asking itself the “reason why” question. Mr Kohanzad suggested that this new rule of law would forever be synonymous with the names of the parties in this case. It would make the work of employment tribunals close to impossible. Mr Kohanzad doth protest too much, methinks. There will be nothing in my analysis of the burden of proof that involves any new law. All I will do is consider some well established principles and underline some of their, sometimes overlooked, subtleties.

Hewage v Grampian Health Board [2012] UKSC 37, [2012] ICR 1054 is often cited as authority for the proposition that in many cases the burden of proof has little to offer, and an employment tribunal may legitimately go straight to the “reason why” question. The employment tribunal may legitimately find as fact that the respondent had a non-discriminatory reason for the impugned treatment. That is correct, but the issue is more nuanced. It is probably best to start at the beginning.

It is long established that a protected characteristic need only have a material influence in detrimental treatment for discrimination to be established: Nagarajan v London Regional Transport [2000] 1 AC 501, 512H – 513B:

Section 136 EqA provides that:

Hewage approved the approach to the burden of proof adopted in Igen Ltd (Formerly Leeds Careers Guidance) and Others v Wong [2005] ICR 931, although noting that such guidance was no replacement for the statutory wording. Igen no longer appears to be a ubiquitous component of employment tribunals’ directions as to the law, but remains of importance:

In some cases there may be no evidence to suggest the possibility of discrimination, in which case the burden of proof may have nothing to add. However, if there is evidence that discrimination may have occurred it cannot be ignored. The burden of proof can be an important tool in determining such claims. These propositions are clear from the following well established authorities.

In Laing v Manchester City Council Elias J (President), noted that it was not always necessary to go through the two stage test, but also stressed that evidence of discrimination should not be ignored:

In Hewage the Supreme Court drew on the analysis of Underhill J (President) in Martin v Devonshires Solicitors [2011] ICR 352:

In Hewage Lord Hope of Craighead DPSC; stated having considered Igen and Madarassy v Nomura International plc [2007] EWCA Civ 33; [2007] ICR 867:

It is important that employment tribunals do not only focus on the proposition that the burden of proof provisions have nothing to offer if the employment tribunal is in a position to make positive findings on the evidence one way or the other. If there is evidence that could realistically suggest that there was discrimination it is not appropriate to just add that evidence into the balance and then conduct an overall assessment, on the balance of probabilities, and make a positive finding that there was a non-discriminatory reason for the treatment. To do so ignores the prior sentence in Hewage that the burden of proof requires careful consideration if there is room for doubt.

Where there is significant evidence that could establish that there has been discrimination it cannot be ignored. In such a case, if the employment tribunal moves directly to the reason why question, it should generally explain why it has done so and why the evidence that was suggestive of discrimination was not considered at the first stage in an Igen analysis. Where there is evidence that suggests there could have been discrimination, should an employment tribunal move straight to the reason why question it could only do so on the basis that it assumed that the claimant had passed the stage one Igen threshold so that in answering the reason why question the respondent would have to prove that the treatment was in no sense whatsoever discriminatory, which would generally require cogent evidence. In such a case the employment tribunal would, in effect, be moving directly to paragraphs 10-13 of the Igen guidelines.

Although it is legitimate to move straight to the second stage, there is something to be said for an employment tribunal considering why it is choosing that option. If at the end of the hearing, having considered all of the evidence, the tribunal concludes that there is nothing that could suggest that discrimination has occurred and the employer has established a non-discriminatory reason for the impugned treatment, there would be no error of law in just answering the “reason why” question, but it is hard to see what would be gained by doing so, when the tribunal has already concluded that there is no evidence that could establish discrimination, which would result in the claim failing at the first stage . There is much to be said for making that finding and then going on to say that, in addition, the respondent’s non-discriminatory reason for the treatment was accepted.

If having heard all of the evidence, the tribunal concludes that there is some evidence that could indicate discrimination but, nonetheless, is fully convinced that the impugned treatment was in no sense whatsoever because of the protected characteristic, it is permissible for the employment tribunal to reach its conclusion at the second stage only. But again it is hard to see what the advantage is. Where there is evidence that could indicate discrimination there is much to be said for properly grappling with the evidence and deciding whether it is, or is not, sufficient to switch the burden of proof. That will avoid a claimant feeling that the evidence has been swept under the carpet. It is hard to see the disadvantage of stating that there was evidence that was sufficient to shift the burden of proof but that, despite the burden having been shifted, a non-discriminatory reason for the treatment has been made out.

Particular care should be taken if the reason for moving to the second stage is to avoid the effort of analysing evidence that could be relevant to whether the burden of proof should have shifted at the first stage. This could involve treating the two stages as if hermetically sealed from each other, whereas evidence is not generally like that. It also runs the risk that a claimant will feel that their claim that they have been subject to unlawful discrimination has not received the attention that it merits.

Where a claimant contends that there is evidence that should result in a shift in the burden of proof they should state concisely what that evidence is in closing submissions, particularly when represented, as Mr Brown did in this case.

In this case the matters raised at grounds 15a, c and d clearly suggested that there could have been discrimination because of something arising in consequence of disability, victimisation, a failure to make reasonable adjustments (prior to the letter sent by the respondent on 23 November 2018) and, possibly, direct disability discrimination.

Strangely, the employment tribunal only referred to the burden of proof in the section of the judgment setting out the law under the heading “direct discrimination”. The following passages in the judgment considered the comparative exercise when considering claims of direct disability discrimination.

Other than that, there was no consideration of the burden of proof at all. The employment tribunal did not state whether it accepted that the facts relied upon by the claimant in the submission prepared by Mr Brown established that there could have been discrimination. The employment tribunal did not say anything about its decision not to apply the two stage Igen test, or state with any real clarity why it decided that there had been no discrimination. This fundamental failure to grapple with significant evidence that suggested there could have been discrimination means that the determinations that there was no discrimination because of something arising in consequence of disability, victimisation, a failure to make reasonable adjustments and/or direct disability discrimination is unsafe. Either the law has not been properly applied or the employment tribunal has failed to give any explanation of how it has been applied. In the terms of ground 4(a) the employment tribunal failed to address the claimant's argument that there were facts sufficient to shift the burden of proof. The employment tribunal erred in law in failing to apply s.136 Equality Act 2010, or, at the very least, to explain why it had not.

Grounds 4 and 6 of the Notice of Appeal assert:

I consider that these grounds are largely made out. Fundamentally, the respondent had conceded in its closing submissions that:

The employment tribunal appears to have noted this concession stating:

The finding at paragraph 89 was inconsistent with this:

The employment tribunal did not inform the claimant that it was preposing to go behind the respondent’s concession. In the circumstances, the employment tribunal’s conclusion that there had “been no unfavourable treatment because of something arising in consequence of the Claimant’s disability” is unsafe.

I consider that ground 4 is made out, save that I do not accept that it is correct to state that the employment tribunal held that the claimant's absences following 13 August 2018 had nothing to do with her disability. The tribunal held that some of her absences after 13 August 2018 were for reasons other than her disability. The questions of whether the absence occasioned by the claimant's fall while on holiday were also related to her disability, which was not expressly considered by the employment tribunal will require reconsideration on remittal. I also do not accept that it was necessarily the case as asserted at ground 6 that the employment tribunal “ought to have found that the Claimant's absence and/or difficulties in relation to attending the office arose in consequence of her disability”. That too will be a matter for consideration on remission.

Ground 14 of the Notice of Appeal asserts:

The employment tribunal dealt with the victimisation claim briefly:

The employment tribunal accepted that the claimant had done protected acts and then concluded that they were not the reason for treatment that the claimant did not rely on as the specific detriments. The detriments the claimant relied on were as set out in the annex to the list of issues. This ground of appeal is made out.

Ground 16 of the Notice of Appeal asserts:

The employment tribunal made the following findings relevant to this complaint:

The reference in paragraph 16 to the claimant informing Ms Meacham that she needed leave to deal with “the episode” might be read as referring to the time that the claimant needed to care for her granddaughter or the consequences of her having gone missing more generally. The employment tribunal’s later conclusions suggest it was the latter:

The employment tribunal did not refer to the fact that in a complaint pursuant to section 47C ERA of detriment done on the ground of having taken dependants leave pursuant to section 57A ERA it is for the employer to show the ground on which any act, or deliberate failure to act, was done, by operation of section 48 ERA. This point was not raised in the Notice of Appeal. In the final analysis I do not consider this was an issue that turned on the burden of proof. I consider the employment tribunal concluded that at the relevant time the claimant had not taken time off to care for her granddaughter. In the circumstances, I can see no error of law in the employment tribunal dismissing this complaint. This ground of appeal fails.

Ground 1 of the Notice of Appeal asserted:

The employment tribunal accepted that the claimant made a request for reasonable adjustments on 21 June 2018 and on 31 August 2018. The employment tribunal accepted that it was not until 30 November 2018 that the respondent agreed the adjustments requested by the claimant, at least on a trial basis. This was because the employment tribunal found that “she continued to work at the office without difficulty until 9 August 2018”. However, as is the case for the discrimination because of something arising in consequence of disability claim, this is inconsistent with the concession made by the respondent that “the difficulties she experienced in relation to attending the Respondent’s office arose as a consequence of her disability”. The fact that a person is able to attend a place of work does not mean that they cannot suffer a substantial, in the sense of being more than minor or trivial, disadvantage in so doing. I consider that the employment tribunal failed properly to analyse whether a failure to make reasonable adjustments had occurred in the period before the respondent agreed to make the adjustments requested by the claimant.

Grounds 17 to 20 asserted:

Mr Kohanzad accepted that if the discrimination grounds of appeal succeeded the appeal in respect of the constructive dismissal claim was almost certain to succeed. On the above determinations about the discrimination grounds of appeal I consider that the constructive dismissal claim necessarily must be determined afresh.

In addition, it is correct, as asserted at ground 18 of the appeal, that contrary to what was stated by the employment tribunal, the claimant did raise the issue of being made an offer to leave employment after 8 October 2018: in her grievance on 21 November 2018, in her letter of 27 November 2018 and at the grievance meeting on 29 November 2018. I also consider that holding that an offer to terminate is not unusual does not provide an answer to the contractual question of whether such conduct is repudiatory. Finally, I accept that the employment tribunal erred in deciding in the circumstances of this case that the mere effluxion of time was sufficient to establish affirmation: see for example Chindove v William Morrisons Supermarket Plc UKEAT/0201/13/BA.

The appeal is allowed on grounds 1, 4, 6, 14, 15(a), (c) and (d) and grounds 17 to 20.

The case will be remitted to be determined by a differently constituted employment tribunal because, having regard to the principles in Sinclair Roche & Temperley v Heard [2004] IRLR 763: