EAT Upholds ET Decision Dismissing Unfair Dismissal and Discrimination Claims in Dr S Hassane v GlaxoSmithKline Services Unlimited

Citation: [2023] EAT 150
Judgment on

Introduction

The case of Dr S Hassane v GlaxoSmithKline Services Unlimited (EAT 2023) concerns issues of fair dismissal and discrimination within the context of an Employment Tribunal (ET) decision. The case particularly deals with whether the Tribunal erred in understanding and addressing claims related to alternative employment opportunities and the shifting burden of proof in claims of discrimination.

Key Facts

Dr S Hassane (the “Appellant”) was employed by GlaxoSmithKline Services Unlimited (the “Respondent”) and was made redundant following a reorganisation. The Appellant’s employment was terminated on 31 December 2018. He previously applied for an alternative role as a Strategy, Planning and Operation (“SPO”) Director but was not successful.

The Appellant claimed unfair dismissal and discrimination based on age, race, and religious belief. He contended that the Respondent failed to offer him alternative employment and compared differential treatments of specific individuals, specifically Adele Cheli, who had been appointed to the position of SPO Director post-dismissal.

The Employment Tribunal initially dismissed his claims, and the Appellant appealed on grounds that the Tribunal failed to address his case adequately, particularly concerning Ms Cheli’s appointment as illustrating unfair dismissal and shifting the burden of proof in discrimination claims.

The case law discusses several legal principles pertinent to unfair dismissal and discrimination within the context of employment law:

  1. Fair Dismissal: A central issue is whether the dismissal is fair in circumstances where the role ceases or diminishes to such an extent that it meets the statutory definition of redundancy.

  2. Alternative Employment: Linked to the concept of unfair dismissal in a redundancy context is the employer’s duty to consider alternative employment for the affected employee.

  3. Discrimination Claims: For discrimination claims, the initial burden of proof is on the claimant to establish facts from which discrimination could be inferred. The principle from Madarassy v Nomura International plc [2007] IRLR 246 was cited, indicating that there must be “something more” than just a difference in a protected characteristic and a less favourable treatment to shift the burden to the employer.

  4. List of Issues as Case Management Tool: The list of issues in ET cases is not a formal pleading but a tool to identify matters to be determined at the hearing. This concept is flagged in relation to the Appellant’s non-amendment of that list to include the specific claim against Ms Cheli.

  5. Amending Claims: If new evidence comes to light that may change the scope or direction of the case, it is the responsibility of the claimant to apply for an amendment to the claim, and the ET is not required to amend it on behalf of the claimant.

  6. Adequacy of Reasoning: An ET is expected to provide sufficient reasons for its conclusions, guided by the principles established in Meek v City of Birmingham District Council [1987] IRLR 250 CA, ensuring the parties understand the basis of the decision.

Outcomes

The Employment Appeal Tribunal (EAT) found that the ET had not erred in handling the Appellant’s case, holding that:

  1. The case as presented to the ET did not require consideration of a specific comparator (Ms Cheli), as it was not a comparison point in the original claims or further particulars, nor did it arise from the disclosure documents.

  2. The ET appropriately addressed the question of alternative employment within the context of fair dismissal, adequately engaging with this aspect of the claim.

  3. There was no substantial evidentiary basis provided by the claimant that could lead to a determination of unfair dismissal or discrimination in regards to the SPO Director role.

  4. The burden of proof for discrimination claims had not been met by the claimant, and thus there was no duty on the ET to give further consideration as to whether the burden should shift to the Respondent.

As a result, the Appellant’s appeal was dismissed.

Conclusion

In Dr S Hassane v GlaxoSmithKline Services Unlimited, the EAT upheld the ET’s decision dismissing the Appellant’s claims of unfair dismissal and discrimination. The case reaffirms the principle that the ET is guided by claims as articulated in formal submissions and the identified list of issues. Furthermore, in discrimination claims, the claimant holds the burden of proof to demonstrate that the differential treatment is anchored in a protected characteristic and is not merely speculative. The EAT’s decision elucidates that the ET’s adjudicatory role does not extend to conjecturing unarticulated aspects of a claimant’s case or amending it during the course of a merits hearing.