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Claims for victimisation: is suspension a detriment?
The case of Fullah v The Medical Research Council & Ors [2022] EAT 45 gives us a simple answer that, in the context of this case: yes, it probably was.
The case arose from a claim by the Claimant, Mr Fullah, of race discrimination and victimisation against his employer in May 2016, raising specific allegations against his immediate line manager and Professor Gathercole, his ultimate manager. The claim was submitted to the ET whilst he was still employed by the Respondent. Mr Fullah was then suspended from his position in February 2017 and subsequently dismissed by the Respondent on the grounds that there had been a irretrievable breakdown in the relationship between him and the staff in the unit where he worked.
It was the second such claim in respect of race discrimination against the Respondent that the Claimant had submitted to the ET, having previously made an unsuccessful claim in 2010, followed by an unsuccessful appeal in 2013.
At first instance, the ET found that Mr Fullah’s suspension was not a “detriment”, as required by s.27(1) Equality Act 2010, and that the protected characteristic relied upon, in this case, race, was not the cause of the dismissal.
Mr Fullah appealed against the decision, and the EAT allowed Mr Fullah’s appeal from the decision of the ET in relation to grounds on the ET’s considerations of the detriment and causation for the claims.
Suspension: A detriment?
The ET in considering this outlined at paragraph 64 of their Judgment that:
“the Claimant has not indicated that he suffered any detriment by virtue of his suspension which was on full pay. He was asked specifically how he considered suspension to be a detriment and said it was “because of the effect it had on me”, but he had not led any evidence to indicate what effect the suspension had on him, either from himself or from any medical report”.
The ET went on to say that “Suspension is usually considered to be a neutral act” (paragraph 64) and found that it had been so in the context of this case.
The EAT (namely, HHJ Shanks) in considering the appeal examined s.27 Equality Act 2010, holding that the Claimant had clearly done a number of protected acts, bringing two ET claims alleging breaches of the very same Act.
In relation to the requirement in the statute for Mr Fullah to have been subjected to a detriment, the EAT referred to the case of Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11, which poses the question:
“Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment?” (paragraph 35)
As the Claimant had given evidence that he regarded the suspension to have been a detriment to him “because of the effect it had” on him, the question was then not whether there was evidence that the Claimant had suffered any medical detriment, but simply whether it was reasonable for him to say that he regarded it as a detriment. The EAT was utterly convinced that such a thing was reasonable for the Claimant to have said, and that the ET approached the matter in the wrong way.
Causation: The law
Again, the EAT considering this point turned to the case law, namely the case of Martin v Devonshire Solicitors [2010] UKEAT/0086/10, and held that the ET had erred in its decision by not having regard to the case law, stating at paragraph 22 in that decision that:
“The question in any claim of victimisation is what was the "reason" that the respondent did the act complained of: if it was, wholly or in substantial part, that the claimant had done a protected act, he is liable for victimisation; and if not, not.”
The exceptional feature of the Martin case however is that, in that case, the ET found the reason for the Appellant’s dismissal was not that claims were presented but a combination of features – false allegations, the Appellant’s inability to accept that they were false, and these being a result of the Appellant suffering mental illness. The reasons for dismissal in that case were found to be genuinely separable from the making of the complaint itself. Subsequent case law confirmed the Martin case to be an exceptional/rare case, and warned against this being the “template into which the facts of cases of alleged victimisation can be fitted” (Woodhouse v West North West Homes Leeds Ltd UKEAT/0007/12/SM, paragraph 101).
Turning back to the case of Mr Fullah, the Judge commented at paragraph 26 that it was “notable” that the ET in this case did not recite the case law on causation to which he had referred, in particular the passages of Underhill LJ in Martin. The question of whether the breakdown was in substantial part because the Claimant had brought proceedings or whether it was other features that were separable from the protected act, remained to be addressed by the ET, in HHJ Shanks’ view.
Analysis
The case has been remitted to the ET and therefore it is not known whether there will be a different outcome or not, but the decision of the EAT raises interesting points on both detriment and causation which will need to be addressed by Tribunals dealing with victimisation claims in particular.
