Employment Appeal Tribunal Overturns Discrimination Ruling Over Procedural Flaws
A discrimination ruling against a charity has been overturned by the Employment Appeal Tribunal due to significant procedural and legal errors.
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Tribunal's Decision Overturned Due to Key Legal and Procedural Errors
The Employment Appeal Tribunal (EAT) has ruled that an earlier employment tribunal erred in law when it found Stay Safe East guilty of race discrimination. The EAT determined that the original tribunal’s decision was based on insufficient legal reasoning and procedural missteps, necessitating a rehearing by a fresh tribunal.
Adjournment Request and Witness Statement Issues
A significant point of contention was the original tribunal's rejection of an unopposed application to adjourn the hearing. This occurred despite the respondent not having received the claimant's witness statement in advance, and the statement itself being significantly augmented orally during the proceedings. The respondent's representative was also unable to attend the hearing.
The tribunal's written reasons failed to adequately set out the relevant law. Crucially, it did not reference the established legal principle that to prove discriminatory treatment, there must be "something more" beyond a simple difference in status and treatment.
Lack of Legal Basis for Discrimination Finding
The claimant, a black woman with a physical disability, alleged she was refused a discretionary payment during sickness absence, while a white, neurodiverse colleague had received such a payment. The EAT found that the original tribunal’s written reasons did not explain on what basis it concluded the decision-makers were the same for both individuals, a requirement for clear reasoning. Furthermore, the tribunal’s finding of discrimination was based on the inference that the decision-makers were "looking after someone who is like you but not looking after someone who is different." The EAT found no evidential basis for this sweeping conclusion, noting that a sample size of one comparator was insufficient to infer such conduct.
"Something More" Requirement and Shifting Burden of Proof
The appeal focused on the tribunal's erroneous conclusion that the burden of proof had shifted. While the claimant had established less favourable treatment by comparing her situation to the white comparator, the tribunal failed to consider the "something more" required by law, as established in cases such as Madarassy v Nomura International. The EAT held that the tribunal erred by concluding the burden of proof had shifted solely based on less favourable treatment, without applying the correct legal test.
Remittal for Rehearing
His Honour Judge Barklem concluded that the appeal should succeed, and the matter has been remitted for a rehearing by a newly constituted tribunal. The judge acknowledged the pressure on tribunal resources but noted that it was unfortunate the adjournment decision was not revisited given the circumstances surrounding the witness statement and the comparator's emergence.
Read the entire judgment here: https://assets.publishing.service.gov.uk/media/699c2f8e31713b50fd49bfed/Stay_Safe_East_v_Monique_Francois__2025__EAT_199.pdf
