Solomon Demba v Care UK Community Partnerships Ltd
[2024] EAT 60
J Edwards v Unite the Union & Ors
20 September 2024
[2024] EAT 151
Employment Appeal Tribunal
A union member sued his union for discrimination. A court ruled that a lower court made mistakes in how it decided whether the union had discriminated against him. The lower court didn't properly consider the evidence to see if discrimination could be inferred, and it also misunderstood what counts as a protected act when someone is discriminated against. The higher court corrected the mistakes.
Key Facts
- •Mr. Edwards, an employment law solicitor and Unite the Union member, brought claims against the Union for discrimination and victimisation.
- •The claims stemmed from the Union's handling of his requests for representation in proceedings against his former employer.
- •Two grounds of appeal were considered: the Tribunal's application of the burden of proof in a victimisation allegation and its determination that an email was not a protected act.
- •The Tribunal found a detriment but concluded the claimant hadn't proven facts from which victimisation could be concluded.
- •The Tribunal found that an email did not constitute a protected act regarding disability discrimination.
- •Ms. Formby, the relevant decision-maker, did not give evidence at the Tribunal.
Legal Principles
Burden of Proof in Equality Act 2010 victimisation claims.
Equality Act 2010, s.136
Definition of a 'protected act' under the Equality Act 2010.
Equality Act 2010, s.27
Drawing inferences from the absence of evidence, particularly when a key decision-maker doesn't testify.
Efobi v Royal Mail Group Ltd [2021] IRLR 811
Two-stage process for establishing victimisation: first, proving facts suggesting victimisation; second, the respondent proving the absence of victimisation.
Igen Ltd v Wong [2005] IRLR 258
Outcomes
Appeal allowed.
The Tribunal erred in its application of the burden of proof under s.136 Equality Act 2010. It failed to properly consider whether, based on the established facts, victimisation *could* be inferred, improperly incorporating explanations at the first stage of the analysis. The Tribunal also wrongly concluded that an email did not constitute a protected act under s.27 Equality Act 2010.