J Edwards v Unite the Union & Ors
[2024] EAT 151
Solomon Demba v Care UK Community Partnerships Ltd
24 April 2024
[2024] EAT 60
Employment Appeal Tribunal
A nurse claimed his job offer was withdrawn because he complained about racism. The first court didn't properly consider his victimisation claim, only focusing on the racism claim. The appeal court sent the case back because the first court made a legal mistake, saying it needs to properly review if the job offer was withdrawn because of the complaint, even if it wasn't due to racism.
Key Facts
- •Mr. Solomon Demba, a registered nurse, claimed age, race discrimination, and victimisation against Care UK Community Partnerships Ltd after his job offer was withdrawn.
- •The offer was withdrawn following a delay in processing his DBS check and references, during which he submitted a grievance alleging discrimination.
- •The Employment Tribunal rejected all claims, but failed to apply the correct legal test for victimisation under s. 27(1) of the Equality Act 2010.
- •Mr. Demba's application for reconsideration was rejected without notifying the respondent or involving other tribunal members.
- •The Employment Appeal Tribunal (EAT) granted permission to appeal only on the ground of the Tribunal's failure to apply the correct legal test for victimisation.
Legal Principles
Victimisation under s. 27(1) of the Equality Act 2010 requires a distinct legal test, separate from direct discrimination.
Equality Act 2010, s. 27(1)
When a tribunal errs in law, it should usually reconsider the matter with correct legal direction. It is difficult for a respondent to show reconsideration would be pointless.
Employment Tribunal Rules, rule 72(1)
Outcomes
The EAT allowed the appeal against the reconsideration judgment.
The Employment Tribunal failed to apply the correct legal test for victimisation under s. 27(1) of the Equality Act 2010 in both its merits judgment and reconsideration judgment. The EAT found it was not inevitable that the Tribunal would reach the same conclusion if the correct test were applied.
The appellant's application for reconsideration of his victimisation claim was remitted for fresh consideration by the tribunal.
The EAT held that the tribunal's error of law warranted a fresh consideration of the victimisation claim, applying the correct legal test. The EAT found the Tribunal's reasoning did not make a different outcome inevitable.