Thread by @JasonBraier

1/ PG2C v Davis: A welcome return of the ET President to the EAT and a notable application of the recent weakening of the rule in Browne v Dunn on the need to allow witnesses to explain themselves before the ET finds dishonesty against them.

bailii.org/uk/cases/UKEAT…

#ukemplaw

2/ D was employed as a business development director of a project & programme management company. His role involved extensive entertainment of clients & expectations of alcohol consumption. D was diagnosed with Type 1 diabetes prior to his dismissal.

3/ D brought a number of claims, but the ET found 2 in his favour (finding it unnecessary to rule on some), namely that his dismissal & R's directors' refusal to acknowledge his ill health were both direct disability discrimination (a s.15 claim was 1 of those not ruled on).

4/ The R's position had been that C's dismissal had been due to performance issues & it hadn't known of D's disability at the material time. The ET found it knew after the start of performance review, but before an ad hoc board meeting at which the dismissal decision was taken.

5/ 1 important way the R's performance explanation for dismissal was undermined was that an email was subsequently altered to make it look as if it complained of D being responsible for an overcharging error, when the original email didn't make that allegation against him.

6/ The ET found the R's witnesses embellished their dissatisfaction with D's performance & took a collusive position to deny knowledge of D's ill-health via a diabetes diagnosis whereas in fact they knew about it. These inferences contributed to a shift of the burden of proof.

7/ The ET inferred that D's diabetes played a substantial role in the dismissal decision, owing in part to an assumption D would now be less capable of doing his job or less committed to it.

8/ Much of the appeal to the EAT (heard by the ET president) focused on perversity issues, on which a thread isn't necessary. However, there are some points of interest.

9/ The R argued that on shifting the burden of proof the ET failed to apply the last part of Igen v Wong - that the burden can be discharged if on the balance of probabilities the protected characteristic was in no sense whatsoever a ground for the treatment in question.

10/ The EAT made clear that all the ET had to do here was to consider whether the decision to dismiss was in no sense whatsoever because of D's disability. There was no requirement to weigh up how much performance predominated in the R's rationale for dismissal.

11/ Perhaps of greater interest was a ground of appeal that the ET erred in finding collusion between R's directors in denying knowledge of D's disability.

12/ R's counsel relied on the rule in Browne v Dunn about the need to give a witness an opportunity to explain a matter on which the tribunal is considering impeaching him for dishonesty (not in the sense of sending him for Senate trial to remove him as President of the USA!).

13/ D's counsel pointed, however, to the recent analysis & citation of case law in RAKIA v Azima & in particular the CA's citation of the PC in Chen v Ng, dampening down the strength of Browne v Dunn in the following way:

14/ The ET President ultimately found the rule in Browne v Dunn wasn't breached given how well advertised the issue of collusion was, time pressures on the ET, that XX on the point wouldn't have changed their denial of knowledge & the normality of drawing inferences in EqA claims