EAT Upholds Employment Tribunal Decision in Toure v Ken Wilkins Print Limited, Clarifying Protected Acts and Victimisation

Citation: [2023] EAT 163
Judgment on

Introduction

In the case of Toure v Ken Wilkins Print Limited ([2023] EAT 163), the Employment Appeal Tribunal (EAT) oversaw an appeal pertaining to allegations of racial abuse and subsequent claims of victimization following a dismissal. The appeal raised substantial questions about the validity of alleged discriminatory acts and the legitimacy of claims made under the Equality Act 2010. An examination of the Tribunal’s approach to assessing credibility, hearsay evidence, and the interpretation of ‘protected acts’ under the Act provides valuable insights for legal professionals.

Key Facts

Mr. Chike Onyeari, the Appellant, was employed by the Respondent until his dismissal for misconduct. He had previously filed a grievance alleging racial abuse by a colleague, which was rejected by management. Subsequently, he conveyed to the management that he would drop his appeal and refrain from legal action if promoted and given a raise. His dismissal, however, was based on misconduct unrelated to the grievance and the act of solicitation for a promotion, described as tantamount to blackmail by the Respondent.

The case examined key aspects of employment law, particularly regarding victimization and the concept of ‘protected acts’ as outlined in the Equality Act 2010:

  • Assessment of Credibility: The ET found the Appellant’s evidence to be unreliable based on various discrepancies and inconsistencies. The EAT asserted that it was the Tribunal’s purview to make such assessments, supporting their rejection of the Appellant’s evidence.
  • Hearsay Evidence: The Appellant contended that the Tribunal improperly relied on hearsay evidence; however, the EAT clarified that adherence to the rules of evidence is not strict in Employment Tribunals, endorsing the Tribunal’s decision.
  • Protected Acts: Section 27(1) of the Equality Act defines victimization and outlines what constitutes a ‘protected act’. Importantly, subsection 27(3) specifies that false allegations made in bad faith do not qualify as protected actions. The Tribunal concluded that the Appellant’s original grievance was fictional and thus could not be considered a protected act.

Outcomes

The EAT dismissed the appeal on the following points:

  • The allegation of racial abuse was determined to be fictional, and therefore, not made in good faith, disqualifying it from being a protected act.
  • The Tribunal’s overall dismissal of the victimization claim was upheld because the statements to the managers about dropping the appeal were separable acts not covered under the ‘protected acts’ provisions of the Equality Act.
  • The Appellant’s dismissal was unrelated to any alleged victimization and was substantiated by separate grounds of misconduct, including the solicitation for a promotion likened to blackmail.

Conclusion

The EAT’s judgment in Toure v Ken Wilkins Print Limited reaffirms several pivotal legal standards. It emphasizes the broad discretion Tribunals possess in assessing witness credibility, permits the inclusion of hearsay evidence, and narrows the interpretation of ‘protected acts’ to exclude those made in bad faith or resulting in unethical conduct like blackmail. For practitioners, this verdict underscores the importance of establishing good faith in discrimination allegations and the recognition of ‘separability’ when considering the causal link between a protected act and subsequent detriment or dismissal.

Related Summaries