Problems with an Employment Tribunal’s decision: unclear reasoning and a substitution in Mohammed v Cummins Ltd UKEAT/0039/20/OO
One of the most fundamental aspects of any ET judgment is the requirement of the Tribunal to give clear reasons for their rulings. Any lack of clarity, or lack of reasoning, is rife ground for appeal, as was the case in a recent EAT judgment.
The case was brought by Mr Mohammed, who had previously been employed as a Chief Machinist by the Respondent. In the summer of 2016, the Claimant was given a final warning in relation to his alleged aggressive behaviour. A month later, he was diagnosed as having anxiety and depression, and began a period of sick leave. He was advised by his GP to take a therapeutic break. In the September of 2016, the Claimant attended an occupational health appointment, where he was told that he was fit to return to work, despite his sick note lasting until the end of that month.
The Claimant travelled after that to Pakistan, with the intention of taking his recuperative break as advised by his doctor. The Respondent invited the Claimant to a meeting to discuss the occupational health report but was informed by the Claimant’s wife that he was unable to attend as he was in Pakistan.
The disciplinary process and the ET claim
As a result, disciplinary proceedings were begun against the Claimant, and the Respondent dismissed him without notice after a hearing in June 2017. The Claimant appealed, but the appeal was dismissed.
The ET held that the Claimant had been discriminated against by reason of disability, contrary to s15 of the Equality Act 2010. This was based on the reasoning that the Claimant had travelled to Pakistan as a result of his disability, and that had been the reason for dismissal. The Tribunal also decided that the Respondent had dismissed him unfairly.
The grounds of appeal
There were two grounds of appeal with which the EAT were concerned. The first was that the Tribunal had failed correctly to apply the test when considering the claim under s15 of the Equality Act 2010. Namely, that the Tribunal did not consider why the Respondent acted as it did. The second was that the Tribunal substituted its own decision for that of the employer, in concluding that the dismissal was unfair
Considering why the Respondent acted as it did (s15 EqA 2010)
The fundamental matter for the Tribunal to determine is the reason for the impugned treatment; the treatment in this case was dismissal. The EAT stated that the ET’s decision “simply [failed] to grapple with the reasoning process of [the Respondent]; which facts he took into account; precisely what (if any) of those factors was something that arose in consequence of the Claimant’s disability.” As such, the ET had erred in law.
The unfair dismissal
Here, the fundamental task of the ET is to decide the reason for dismissal. In this case, the EAT held that the Tribunal had not set out what conduct the Respondent determined the Claimant to be guilty of. While there were a number of passages that suggest that there was an issue in respect of the way in which the Claimant had dealt with his visit to Pakistan, there were a number of potential reasons that could have been at play in the Respondent’s mind. As such, the EAT concluded that this had also been an error of law by the ET.
The EAT remitted the issue to a differently constituted Tribunal.
Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2021/0039_20_1901.pdf