Labour & European Law Review Weekly Issue 439 30 September 2015
When considering victimisation claims, tribunals must focus on the “mental processes of the putative discriminator” in order to decide whether the “protected act” influenced the decision of the managers to dismiss, according to the decision of the Employment Appeal Tribunal (EAT) in Leeds Teaching Hospital NHS Trust v Blake.
Ms Blake was given a final written warning for 12 months and redeployed to another unit as a security officer. She had previously committed “protected acts” under the Equality Act when she alleged that the Trust had subjected her to sex discrimination during disciplinary proceedings and she had assisted a colleague in a disability discrimination claim.
As she had a substantial amount of leave to take from the previous year, Ms Blake was told that she should use it up as quickly as possible. She was also told that she had to submit all holiday requests using an official leave form, as opposed to just e-mailing her manager with the dates she wanted to take. She subsequently made a number of formal applications for time off, all of which were approved.
Ms Blake then decided to go on a cruise with her daughter as she had yet more leave to use up. She telephoned her manager and when told that those dates were available, she went ahead and booked it. She submitted a formal application form the next day, but was told a few weeks that later that her request could not be granted.
After appealing unsuccessfully up the chain of management, Ms Blake was told that if she did not turn up for work between the relevant dates, her absence would be regarded as unauthorised. Ms Blake went on the cruise and was dismissed after a disciplinary hearing. She brought claims of unfair dismissal and victimisation discrimination because of the earlier “protected acts”.
Criticising the Trust for being inflexible in the way it applied its annual leave policy, the tribunal accused it of taking a “brick wall “ approach. Instead of trying to adapt the policy so that Ms Blake’s request could be accommodated, it made no attempt to consider alternatives. The tribunal concluded that the real reason for dismissing Ms Blake was not because of her conduct but because she was perceived by the Trust as a trouble maker as a result of her involvement in previous proceedings.
If this was wrong and conduct was the principal reason for dismissal, the tribunal held that the Trust did not “act reasonably in treating that reason for the dismissal as a sufficient reason, in all of the [circumstances]”. It therefore concluded that the dismissal was unfair.
The EAT allowed the Trust’s appeal. In terms of the victimisation claim, the EAT held that the tribunal had not explained its decision fully, adding that tribunals must focus on the “mental processes of the putative discriminator” when deciding whether the protected act influenced the decision of the managers to dismiss, whether consciously or unconsciously. The tribunal in this case had not recognised that there was a distinction between unreasonable conduct and conduct which is because of a protected act. That was a significant oversight as it does not necessarily follow that conduct which is unreasonable is because of a protected act.
In terms of the unfair dismissal decision, the EAT held that the tribunal had made decisions based on its own view of the facts rather than asking what the employer’s view was and whether that view was reasonable. It therefore failed to apply the law correctly.
The EAT allowed the appeal and remitted the claims of victimisation and unfair dismissal for consideration by a different tribunal.
This case serves as an important reminder that conduct which is unreasonable must also be shown to be because of a protected act in order for a claim of victimisation to succeed.