The claimant lost his claims of victimisation, direct discrimination and disability-related discrimination at the ET. He appealed, the main complaint being that the ET had incorrectly said that the provisions of s17 of the DDA, the reverse burden of proof, did not apply to the claim of victimisation.

The EAT upheld the appeal. They agreed that the reverse burden of proof did apply to the victimisation claim and further, it was unclear what burden of proof had been applied to the direct and disability-related discrimination claims.

Appeal No. UKEAT/0485/11/RN

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

At the Tribunal

On 17 February 2012

Before

HIS HONOUR JUDGE PETER CLARK, MR D BLEIMAN, MR T HAYWOOD

MR P WILLIAMS (APPELLANT)

BANNATYNE FITNESS LTD (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR SEAN O'BRIEN (of Counsel)

Instructed by:
Coley & Tilley Solicitors
Neville House
14 Waterloo Street
Birmingham
B2 5UF

For the Respondent
MR DAMIAN ROBSON (Solicitor)

Messrs Ward Hadaway Solicitors
Sandgate House
102 Quayside
Newcastle-upon-Tyne
NE1 3DX

VICTIMISATION DISCRIMINATION – Other forms of victimisation

DISABILITY DISCRIMINATION

Disability related discrimination

Direct disability discrimination

Reverse burden of proof not applied to DDA victimisation claim; unclear what burden of proof was applied to direct and disability related discrimination claims. Appeal allowed; claims remitted to same Employment Tribunal for rehearing.

1. This is an appeal by Mr Williams, the Claimant before the Birmingham Employment Tribunal, against the reserved Judgment of a Tribunal chaired by Employment Judge Hutchinson, promulgated with Reasons on 26 January 2011, in so far as it dismissed his claims of victimisation, direct discrimination and disability related discrimination contrary to the Disability Discrimination Act 1995 (DDA). His complaint of failures to make reasonable adjustments was upheld in part. There is no appeal or cross appeal against the Tribunal's findings under that head of claim. The Respondent is his former employer, Bannatyne Fitness Ltd.

1. In their self direction as to the law, at paragraph 36, the Tribunal correctly reminded themselves in relation to the duty to make reasonable adjustments that under section 17A(1)(c) DDA the reverse burden of proof applies. However, they go on to say that the provisions of section 17 do not apply to the claim of victimisation. It is common ground between the parties that that is not a correct statement of the law; we agree. The Court of Appeal decision in Oyarce v Cheshire County Council [2008] ICR 1179 was restricted to cases of victimisation brought under the Race Relations Act 1976 (RRA) where on a strict interpretation of the wording of that statute (see section 54A(2)) the reverse burden of proof provisions did not apply to claims of victimisation. Buxton LJ drew a distinction (paragraph 37) between the wording of the RRA and other discrimination legislation including, specifically, the DDA. That is, with respect, plainly correct on examination of the DDA. Section 17A(1) provides that a complaint of discrimination rendered unlawful under Part II of the Act may be presented to a Tribunal and section 17A(1)(c) applies the reverse burden of proof to the hearing of a complaint under subsection (1). Victimisation under the DDA is provided for in section 55, which begins in subsection (1) with the words "for the purposes of Part II […]", and then sets out the usual definition of victimisation. It follows that victimisation complaints are imported into Part II of the Act and thus are covered by the reverse burden of proof provision in section 17A(1)(c).

1. Further, whilst it is plain that the reverse burden of proof provision applies also to this Claimant's complaints of direct discrimination and disability related discrimination, Mr O'Brien, on behalf of the Claimant, asserts that the Tribunal, if they directed themselves to the burden of proof in relation to those claims, and their Reasons are silent on it, did not apply it correctly (see paragraph 40 of the Reasons). To put the point in context, in setting out the Claimant's complaints (paragraph 2 of the Reasons) the Tribunal list five alleged acts of victimisation at paragraph 2(iii), and then at paragraph 2(iv) say, "He further complains that these acts also amount to direct discrimination and/or disability related discrimination".

1. At paragraph 39 the Tribunal, placing the burden of proof on the Claimant throughout, found that each victimisation complaint failed, and at paragraph 40 conclude in these terms:

"In summary, whilst we are satisfied that the behaviour of the respondent towards the claimant in respect of these matters was unreasonable, we do not believe that they were on the grounds of his disability and therefore his claims of direct disability discrimination and disability related discrimination also fail in respect of those matters."

1. Mr O'Brien makes the point, first that it appears that the Tribunal equally applied the incorrect burden of proof to the claims of both direct and disability related discrimination, and further that paragraph 40, wholly unreasoned, deals only with direct discrimination on the grounds of the Claimant's disability and not the disability related discrimination under section 3A(1) DDA, to which the Tribunal refer at paragraph 36. Mr Robson agrees with the latter submission, but submits that the Tribunal gives no express self direction in relation to the direct and disability related discrimination claims.

1. In these circumstances it is plain that this appeal must succeed, but how far? Mr O'Brien raises perversity grounds of appeal and a Reasons complaint. He invites this Appeal Tribunal to substitute its own findings on the claims of victimisation, direct discrimination and disability related discrimination; alternatively, for those claims to be remitted to the Tribunal for rehearing, applying the correct burden of proof and treating each of those three claims separately. Mr Robson accepts that the victimisation findings must be set aside, and asks this Appeal Tribunal to make its own findings on that part of the claim. He also urges us to uphold the Tribunal's findings on both direct and disability related discrimination claims; failing that, we should refer certain questions back to the Tribunal under the Burns/Barke procedure.

1. The factual background to this case is that the Claimant is by common agreement disabled; he is a victim of thalidomide toxicity, and was born with impaired arms. On 5 January 2005 he commenced employment with the Respondent's predecessors as a health and fitness coach. In August 2006 that employment was transferred to the Respondent, which took over the Tamworth club at which he worked. This appeal was initially rejected under rule 3(7) of the EAT Rules on the paper sift by HHJ McMullen QC. However, following a rule 3(10) hearing before HHJ David Richardson, by an order seal dated 20 September 2011 that Judge allowed certain allegations of perversity to proceed to this full hearing along with the substantive grounds relating to the burden of proof and the Reasons complaint.

1. The perversity grounds are set out at paragraph 12 of the Notice of Appeal. Only grounds (c) and (d) were permitted to proceed. Both assert that first in relation to his exclusion to the club and then the Respondent's refusal to permit the Claimant's grievance to be heard at the club amounted necessarily to acts of victimisation. Whilst opposing the perversity submission, which, as Mr O'Brien accepts, faces the high hurdle placed in his path by the Court of Appeal Judgment in Yeboah v Crofton [2002] IRLR 634, Mr Robson goes further in asserting that the Tribunal's findings ought to be upheld at least in part.

1. We have considered those submissions but are not persuaded that we should second guess the outcome of the various complaints to be determined by the Employment Tribunal as the fact finding Tribunal, applying the law correctly.

1. We accept that, particularly in relation to paragraph 40 of the Reasons, which deals briefly with the claims of direct and disability related discrimination, the Tribunal's Reasons fall short of Meek v City of Birmingham District Council [1987] IRLR 250 compliance and therefore compliance with rule 30(6) of the ET Rules of Procedure. In particular there is no express finding in relation to the disability related discrimination complaint, and it is at best unclear what burden of proof was applied to those claims. For the avoidance of doubt, as we have said, the reverse burden under section 17A(1)(c) applies.

1. Bringing all the threads of this appeal together, it is plain to us that the proper course is to allow the appeal and remit the complaints of victimisation, direct and disability related discrimination to the same Tribunal chaired by Employment Judge Hutchinson for reconsideration. We do not consider that a Burns/Barke reference, as suggested by Mr Robson, would be appropriate in the particular circumstances of this case. We acknowledge that this case was heard some time ago in Birmingham between 25 and 27 October 2010, but it would be proportionate to save the parties the cost of a full rehearing before a fresh Tribunal, and it is common ground that there is no indication here that the original Tribunal approached the case other than in an admirably even handed way, as indicated, for example, by the findings going each way on the reasonable adjustments claim (see Sinclair Roche & Temperley v Heard [2004] IRLR 763, paragraph 46, per Burton P (as he then was)).

1. As to the remitted hearing, it is again common ground between counsel that no further evidence will be necessary. The matter will be dealt with on the parties' submissions on law and fact in relation to each of the three remitted heads of claim separately. For that purpose each party must lodge a written skeleton argument 14 days before the further Employment Tribunal hearing, those skeleton arguments to be exchanged between the parties at the same time.