M Glover v Lacoste UK Ltd & Anor
[2023] EAT 4
D v E
1 February 2023
[2023] EAT 66
Employment Appeal Tribunal
A man lost his job after a rape allegation. He claimed unfairness because the company's way of dealing with such cases seemed to hurt men more. The first court dismissed his case too quickly, so a higher court sent it back to be looked at again properly.
Key Facts
- •The claimant, a man, was dismissed from his job after an allegation of rape was made against him (unrelated to his work).
- •He had less than two years' service, precluding an unfair dismissal claim.
- •The claimant claimed indirect sex discrimination, arguing that the employer's practice of investigating serious sexual misconduct allegations disproportionately affected men and led to his dismissal.
- •The Employment Tribunal struck out the indirect discrimination claim, finding it had no reasonable prospect of success.
- •The Employment Tribunal considered that dismissal could only arise as a consequence of direct, not indirect, discrimination.
Legal Principles
Indirect discrimination occurs when a provision, criterion, or practice (PCP) disproportionately disadvantages a group sharing a protected characteristic, and cannot be shown to be a proportionate means of achieving a legitimate aim.
Equality Act 2010, section 19
The test for striking out a claim is whether it has no reasonable prospect of success, not whether it is likely to fail. Claims which are fact-sensitive should not be struck out.
Employment Tribunal Rules 37 & 39; Anyanwu v South Bank Student Union; Ezsias v North Glamorgan NHS Trust
In indirect discrimination, a causal link is needed between the PCP and the particular disadvantage, not necessarily between the less favourable treatment and the protected characteristic.
Essop v Home Office
Outcomes
The Employment Appeal Tribunal allowed the appeal.
The Employment Tribunal erred by failing to consider whether dismissal was a potential disadvantage arising from the PCP. It wrongly assumed dismissal could only be a consequence of direct discrimination. The EAT held that the PCP, as reformulated by the Employment Tribunal, could encompass dismissal as a potential consequence.
The claim for indirect sex discrimination was remitted to the Employment Tribunal for further consideration.
The Employment Tribunal's error was material to the outcome of the strike-out application. The EAT did not find that the claim was likely to succeed, but held that it had a reasonable prospect of success.