To succeed in a claim of victimisation, complainants have to show that they suffered a detriment (disadvantage) as a result of bringing tribunal proceedings. In Fullah v The Medical Research Council and ors, the Employment Appeal Tribunal (EAT) held that in terms of proving they had suffered a detriment, workers just have to show that it was reasonable in the circumstances to believe that they had.
Basic facts
Mr Fullah, who is black British, had worked as a computer officer in the Cognitive and Brain Services Unit of the MRC since 2001. In June 2010, he lodged a tribunal claim alleging discrimination against his then line manager which was dismissed, as was the appeal. In May 2016, he made further tribunal allegations of discrimination and victimisation against two different managers which were dismissed in February 2017.
On his return to work after the hearing he was suspended on full pay pending an independent investigation as to whether there had been a breakdown in the relationship of trust and confidence, such that his employment was no longer viable. This concluded that there was a case for Mr Fullah to answer. Following a formal hearing, the MRC concluded that his relationship with other staff in the Unit and the MRC more broadly had irretrievably broken down and he was dismissed in May 2017.
Mr Fullah lodged further tribunal proceedings alleging victimisation.
Tribunal decision
The tribunal found that it was reasonable for the MRC to wait for the outcome of the tribunal decision before suspending Mr Fullah. As to whether his suspension amounted to a detriment the tribunal found he had not provided any evidence that he was disadvantaged by it, other than to say that the suspension had an effect on him. The tribunal noted that there was no medical evidence and as suspension was a “neutral act”, it held that he had not been subject to a detriment.
In terms of whether the reason for Mr Fullah’s suspension and/or dismissal was because he had done a protected act by bringing employment tribunal proceedings, the tribunal found that it was not. Instead it held that the reason was because of a fundamental breakdown in the relationship with his line manager which the employer had reasonably concluded was “beyond repair”.
Mr Fullah appealed, arguing first that the tribunal had erred in finding that he had not been subject to a detriment when he was suspended and by not giving sufficient consideration as to what might reasonably be viewed by an individual as a detriment. Secondly, it had failed to consider whether his prior protected acts played any part in influencing the decision to suspend and/or dismiss him, whether consciously or unconsciously.
EAT decision
Allowing the appeal, the EAT held that the tribunal was wrong to decide that suspension did not amount to a detriment. Mr Fullah had given evidence that he personally regarded it as such, which was a reasonable thing for him to say in the circumstances. It was irrelevant that he did not have any medical or other evidence to back up his view.
Secondly, it held that the tribunal had not referred to the relevant case law (Martin v Devonshires Solicitors), when considering the reason for his suspension and dismissal. In particular, the tribunal had failed to distinguish between the features which were, or were not, separable from the protected act. Nor had it addressed the question of whether the cause of the breakdown in the relationship was because he had brought tribunal proceedings or as a result of something completely separate.
The EAT remitted the case back to the same tribunal for reconsideration of these issues.
Comment
The case makes clear that the threshold for establishing if someone has been subject to a detriment is relatively low. In this case the tribunal found that it was reasonable for the claimant to treat the suspension as amounting to a detriment because it had an effect on him. To that extent he was put at a disadvantage. This is good news for claimants who can often understandably find suspension stressful and upsetting, despite being paid.
The more difficult question, as to whether the protected act caused his suspension and/or dismissal, is a matter which will now be for the tribunal to determine.