EAT determines Tribunal erred on issue estoppel, unfavourable treatment and the test for proportionality.

HHJ Auerbach recently handed down judgment in the case of Aston v the Martlet Group UKEAT/0274/18/BA, a multifaceted disability discrimination case which considers, amongst others things, the correct approach to analysing claims under section 15 of the Equality Act 2010 and also the interplay between the common law doctrine of judicial proceedings immunity and EU law when it comes to claims for victimisation.

The Claimant was an operations manager for a bicycle supply company. He suffered from depression and went on long-term sick leave. Following discussions about a return to work, his employer offered him an alternative role at a lesser salary, which he was not prepared to accept. It failed to warn him that if he did not accept the alternative role he would be dismissed.

Amongst other things, the Claimant brought claims for section 15 discrimination and alleged that the failure to warn and his subsequent dismissal was unfavourable treatment based on his sickness absence, which arose in consequence of his disability.

At a preliminary hearing to determine whether a separate claim for unfair dismissal was presented in time, the Employment Tribunal made an adverse finding of fact that the Claimant had said he did not want to return to his old job (despite this not being an issue for determination at that hearing). At the final hearing, the ET refused to go behind this finding, stating that it gave rise to an issue estoppel.

At the same preliminary hearing, when giving evidence, one of the Respondent’s directors re-stated an earlier offer to make a goodwill payment of £4,000 to the Claimant “no strings attached”. When the Respondent did not then pay up the Claimant amended his claim to allege victimisation on the basis that the money was not paid because he had continued to bring proceedings against the Respondent.

The EAT’s judgment contains some important findings which arguably develop the law in relation to both section 15 and victimisation:


 The Respondent had argued that continuing (i.e. not withdrawing) proceedings was not capable of amounting to the protected act of “brining proceedings” under section 27(2)(a). The EAT rejected this argument, applying the pre-Equality Act 2010 case of Derbyshire and others v St Helens MBC [2007] ICR 84. Applying a purposive interpretation, the concept of bringing proceedings found in section 27(2)(a) should be construed as embracing a decision to continue with proceedings and not just to the initial presentation of a claim.

Whilst the EAT ultimately found that the ET had erred in law in its approach to the question of victimisation, it found that for two reasons the ET did not have jurisdiction to deal with such a claim.

Firstly, the doctrine of judicial proceedings immunity applied. The EAT rejected the Claimant’s argument that his victimisation complaint was a claim brought under the Equal Treatment Directive and that such a doctrine was incompatible with EU law. The case of P v Commissioner of Police of the Metropolosis [2018] ICR 560 was considered but distinguished.

Secondly, in any event section 108 of the Equality Act 2010 only allows victimisation claims from conduct that “arises out of and is closely connected to” the past employment relationship. The EAT found that the £4,000 offer was made in a fresh and distinct context, under oath during cross examination, and the connection to employment was not close.

The finding that an employee’s decision to continue proceedings will be considered as a protected act as much as bringing proceedings in the first place is significant. It will mean care will have to be taken by employers when making informal offers to resolve a dispute which are not made without prejudice.

 Issue Estoppel

 The EAT considered that the Tribunal had erred in law in the way it had dealt with the issue of potentially binding findings of fact. Applying the test in Bon Groundwork Limited v Foster [2012] ICR 1027, the EAT found that the findings of fact were not a necessary ingredient of the issue before the ET at that Preliminary Hearing, which was solely the issue of time limits. The ET was wrong to regard the issue of whether the Claimant had said he could not continue as a determined issue. That issue ought to have been open for argument at the full merits hearing.

Unfavourable Treatment

 The Claimant also succeeded in persuading the EAT that the Tribunal had erred in its approach to what was unfavourable treatment. Applying Williams v The Trustees of Swansea University Pension and Assurance Scheme [2018] UKSC 6, the EAT reiterated that the test of what is unfavourable treatment is a low threshold and on the facts here it ought to have been met by an employer’s failure to tell an employee they would be dismissed if they did not accept an alternative role.


 Lastly, the EAT concluded that the Claimant’s criticisms of the way in which the ET dealt with the issue of the proportionality of the dismissal were plainly well founded. The Tribunal had simply set out the Respondent’s case as to the legitimate aim and the proportionate means but said nothing at all about what it made of that case.

The EAT therefore upheld the Claimant’s appeal on 3 out of 4 grounds. The EAT remitted relevant remaining matters to a freshly constituted Tribunal. Tom Kirk, instructed by Gaby Hardwicke Solicitors, represented the successful Claimant (Appellant) at first instance and before the EAT. A full copy of the judgment can be found here.

14th June 2019