The Claimant worked for the Respondent from December 2012 until August 2014, when he was dismissed, purportedly for breaching the Respondent's dress code and disobeying management instructions. Staff working in his department were required to dress in an "appropriate, smart/ casual manner", but on various occasions the Claimant came to work in jeans, which he knew were forbidden. Although he had insufficient service to claim unfair dismissal, he brought claims of direct sex discrimination and victimisation, on the basis that female employees in other teams were allowed to wear "leggings, see-through dresses, track suit bottoms" and other "scruffy" clothes. Although the Tribunal dismissed his claim of direct discrimination, finding that the "no jeans" rule was enforced in his department irrespective of sex, it upheld his claim of victimisation, ruling that "his questioning of the application of the dress code" was a significant contributory factor in the decision to dismiss him. The Respondent appealed on the grounds that the Tribunal asked itself the wrong question and/ or that it gave inadequate reasons.

The EAT allowed the appeal on both grounds. There was no dispute that, in raising allegations of sex discrimination, the Claimant had done a protected act. Strictly, the Tribunal ought to have asked itself whether his allegations of sex discrimination had the relevant causative effect, and were a significant contributory factor in the decision to dismiss, rather than focusing on "his questioning of the dress... code". The EAT also found that the Tribunal's reasons were insufficiently clear and the victimisation claim was remitted to the same Tribunal.

Tim Crane, Employment Law Solicitor

------------------------------------------------------------- Appeal No. UKEAT/0310/15/JOJ

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 4 February 2016

Judgment handed down on 15 February 2016

Before

HIS HONOUR JUDGE SHANKS

(SITTING ALONE)

JJ FOOD SERVICE LIMITED (APPELLANT)

**

**

MOHAMUD (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MS KATHERINE REECE (Representative)
Peninsula Business Services
The Peninsula
Victoria Place
Manchester
M4 4FB

For the Respondent
MR AL MUSTAKIM (of Counsel)
Direct Public Access

VICTIMISATION DISCRIMINATION - Dismissal

The Claimant came to work three times dressed in jeans which he knew was a breach of the employer's dress code. On the second occasion he was sent home to change and said he would dress more appropriately thereafter. When challenged about it on the second and third occasions (and in the subsequent disciplinary and appeal hearings) the Claimant challenged the dress code and its application on various grounds including that it was applied differently in relation to women and alleged that the employer was discriminating against him on grounds of sex.

He was dismissed ostensibly for breaching the dress code and disobeying management instructions but brought proceedings alleging that he had been victimised.

The Employment Tribunal's reasons for upholding that claim were that "his questioning of the application of the dress code" was a significant contributory factor in the decision to dismiss him. Strictly, the Employment Tribunal ought to have asked itself whether the allegations of sex discrimination amounted to such a factor. The Employment Tribunal's reasons were also not adequate to explain why they had found against the employer.

In the circumstances the appeal was allowed and the finding of victimisation remitted to the Employment Tribunal.

1. This is an appeal by JJ Food Service Ltd against a decision of an Employment Tribunal (Judge Bedeau and members) sitting in Watford that they had victimised the Claimant by dismissing him. There was no dispute that he had done a "protected act" nor that he was dismissed; the issue was whether JJ Food dismissed him because he had done the protected act (or, as some of the authorities put it, whether the doing of the protected act "had a significant influence on the outcome"). On the appeal JJ Food contend that in finding for the Claimant on this issue the Tribunal asked itself the wrong question and/or gave inadequate reasons.

1. Unless otherwise indicated I take the facts from paragraphs 11.1 to 11.78 of the Tribunal's Reasons.

1. The Claimant started work at JJ Food on 17 December 2012 as a Purchase Ledger Supervisor. As set out in the Claimant's letter of appointment, the company had a dress code which required him to dress in an "appropriate, smart/casual manner". The Tribunal found as a fact that the expression "smart/casual" did not include jeans, track suit bottoms or trainers and (at paragraph 14.4) that the Claimant knew that jeans were not allowed in his department.

1. On Friday 11 July 2014 the Claimant came to work for the first time dressed in jeans with a long sleeved untucked shirt. This was noted by Mr Zobair, Financial Controller, who made a light-hearted comment expecting some explanation but the Claimant did not respond.

1. On Friday 18 July 2014 the Claimant again came to work in jeans. Mr Zobair and Mr Lanham, the Chief Financial Officer, drew this to the attention of Mr Berry, the Finance Manager, and the Claimant was called to a meeting. He was told he was dressed inappropriately and that he had been dressed in the same way the previous Friday and asked why. The Claimant accused Mr Berry of acting in an unfair and discriminatory manner pointing out that in other departments jeans were allowed and that some women wore shorts to the office. There was a heated discussion about the contents of the employee handbook and the meeting became confrontational. Mr Zobair told the Claimant that the dress policy was department specific and what other departments allowed was irrelevant. The Claimant again said that he was being singled out and that other staff dressed inappropriately; he mentioned one woman who worked in credit control who had worn shorts; he said that Mr Berry might have been blinded by her legs. The meeting ended with the Claimant saying he would dress more appropriately from the coming Monday but he was nevertheless instructed to go home and change immediately which he did.

1. On Monday 21 July 2014 the Claimant again came to work dressed in jeans despite his undertaking on the Friday. He told the Tribunal this was because he wanted the Human Resources Manager's opinion on his dress. He emailed her at 09:22 requesting an urgent meeting and alleging unjust and unfair treatment in relation to JJ Food's dress code. In the meantime he was spoken to by Mr Berry and Mr Zobair. He asserted that JJ Food should treat everyone equally and referred to the Equality Act 2010. He said he had felt bullied and harassed at the Friday meeting. He mentioned a number of women who he said dressed inappropriately and who he claimed received favourable treatment while he was receiving unfavourable treatment. Again he was instructed to go home and change and he did so. Before he left he again emailed the Human Resources Manager at 10:47 and repeated the allegation of unfavourable treatment.

1. On 23 July 2014 he saw the Human Resources Manager and was invited to raise a formal grievance but he declined to do so. He said that he considered the incidents to be "binned and dusted" but that he still felt he had been treated less favourably than other employees and did indicate he wanted a meeting with his managers and Human Resources to clear the atmosphere.

1. Meanwhile, Mr Canci, the Senior Human Resources Coordinator, received Mr Berry's notes of the meetings of 18 and 21 July and invited the Claimant to a disciplinary hearing to consider his "… repeated failure on 11, 18 and 21 July 2014 to comply with the required standards of dress …". In an email dated 30 July the Claimant told Mr Canci that staff in other departments wore unwashed jeans and scruffy t-shirts and referred to examples of how women in the Finance Department dressed (in leggings, see-through dresses, track suit bottoms), claiming that they had been treated more favourably because they were women. At the disciplinary meeting on 7 August the Claimant repeated these points and questioned where in the dress code it was provided that jeans could not be worn.

1. Mr Canci dismissed the Claimant by letter dated 13 August 2014. He stated that he had reviewed the comments about other staff and the clothes they had worn to work and was satisfied that they had had good reason not to comply with the policy. He stated that despite being warned the Claimant had repeatedly come to work wearing jeans and that he should have complied with the standards of dress required by his department and the warnings of his managers. He said that having considered the Claimant's responses and the fact that he had only a short amount of service, he had decided to dismiss him.

1. The Claimant appealed raising numerous points including stating that he had been discriminated against on grounds of sex and victimised. There was a hearing on 3 September 2014 and Mr Larkin who conducted the appeal interviewed Messrs Barry, Zobair and Lanham thereafter. The appeal was dismissed by letter dated 26 September 2014. In a separate "grievance outcome letter" relating to the alleged discrimination Mr Larkin considered the points raised by the Claimant about the treatment of other employees and concluded that there had been no discrimination.

1. The Claimant brought claims of sex discrimination and victimisation in the Employment Tribunal. He was unable to claim unfair dismissal because he did not have two years continuous service.

1. The Tribunal at paragraphs 14.1 to 14.5 of their Reasons rejected a claim of direct sex discrimination by the Claimant, finding that the "no jeans" rule was enforced in his department irrespective of sex.

1. They then turned to the victimisation claim. In paragraph 14.6 the Tribunal noted that the Claimant had alleged that his employer was discriminating against him on the grounds of sex at the meetings of 18 and 21 July 2014 and by email on 21 July 2014 and that these allegations were clearly protected acts.

1. They then recorded that after returning to work on 21 July 2014 the Claimant had not worn jeans to work and stated that this "… should have been quite apparent to Mr Berry and to Mr Canci" (emphasis added). At paragraph 14.7, apparently in reliance on that, they rejected the contention that during the disciplinary and appeal hearings the Claimant was insistent that he would continue to wear jeans until the handbook made clear that no jeans were to be worn. The Tribunal had recorded that Mr Canci had given oral evidence to this effect in relation to the disciplinary hearing at paragraph 11.53 but it was not mentioned in the dismissal letter and I can see no reference elsewhere in the Reasons to such a statement by the Claimant in the course of the appeal hearing.

1. In paragraph 14.8 the Tribunal recorded that Mr Larkin had told them that one of the reasons he had rejected the appeal was that the Claimant was persistent in challenging the "smart/casual dress code policy and how it had been applied".

1. The Tribunal then concluded at paragraph 14.9 that:

"… disciplinary proceedings were invoked against the claimant because he questioned the application of the dress code policy. It also was a significant contributory factor in the decision to dismiss him and in the dismissal of his appeal. …"

The Claimant had therefore established the necessary causal connection and his claim of victimisation succeeded.

1. JJ Food say first that the Tribunal simply asked themselves the wrong question in paragraph 14.9. The issue was whether the Claimant's allegations of sex discrimination had had a significant influence on the decision to dismiss him; the Tribunal stated only that the Claimant's questioning of the application of the dress code policy was a significant contributory factor in the decision: they are not the same thing.

1. The Claimant says in answer that one of the grounds (perhaps the main ground) on which he was questioning the application of the dress code policy was that it was discriminatory and that the causative link was therefore clearly established. JJ Food point out that there were other aspects to the questioning, in particular the fact (the Claimant said) that the code was applied differently by different departments and the fact that the employee handbook did not make it clear that no jeans were allowed.

1. I confess I have wavered about this. There may be other similar cases where it would have been acceptable for a Tribunal to use a short-hand form of reasoning and not expressly spell out that the making of the allegations of sex discrimination had the relevant causative effect. But I have come to the view that in this case it was significant that the Tribunal did not in terms ask itself the right question. I reach this conclusion partly because there were other grounds on which the Claimant was challenging the application of the dress code. But I also have in mind that this was a case where, on the facts, it might have been open to the Tribunal to conclude, for example, that it was the manner or persistence of the Claimant's complaints rather than the content of them which had led to his dismissal and it was therefore important, in my view, for the Tribunal to focus its mind on exactly what it needed to be satisfied of before reaching its conclusion. The paucity of the reasoning, which I deal with in relation to the second ground, does not assist in dispelling this concern.

1. JJ Food's second ground of appeal was that the reasons given by the Tribunal for their conclusion on causation were inadequate and, in particular, that they failed to engage with or explain why they rejected their case that the reason for the dismissal was simply the Claimant's failure to comply with the dress code and his refusal to follow management instructions.

1. The Claimant says in answer to this that the Tribunal's reasons are "simple and adequate" and that there is no error of law in providing such reasons. He also points out that it was not necessary for the Tribunal to reject the reason put forward by JJ Food as long as they concluded that the protected acts also had a significant influence on the decision to dismiss. He notes the evidence which Mr Larkin had given (recorded at paragraph 14.8) that one of his reasons for rejecting the appeal was that the Claimant had been persistent in challenging the dress code and its application. And he refers to the reverse burden of proof provision at section 136 of the Equality Act 2010.

1. I think it is indisputable that the Tribunal's Reasons are not as full or clear as they might have been. In effect they refer to two matters: at paragraph 14.7 they reject the contention that the Claimant had threatened to continue to wear jeans until the handbook stated otherwise; and at paragraph 14.8 they record Mr Larkin's evidence about one of his reasons for dismissing the appeal. But the Tribunal do not really explain how they get from those two points to a conclusion on causation and, if they were applying section 136, they do not say so. The significance of the conclusion at paragraph 14.7 is not clear to me: as far as I can see Mr Canci and Mr Larkin did not seek to rely on any continuing threat by the Claimant at the disciplinary and appeal hearings but rather on the events of 11, 18 and 21 July 2014. And the evidence from Mr Larkin related to the Claimant challenging the dress code and its application rather than to the Claimant alleging sex discrimination as such, which brings us back to the first ground of appeal.

1. Overall I have reached the view that the Tribunal's Reasons are not adequate and do not properly explain to the losing party why they lost. There was a ready and complete explanation for the dismissal in the fact that the Claimant had come to work three times knowingly (as the Tribunal found) dressed in breach of his employer's dress code and, on 21 July 2014, in breach of clear management instructions and of his own undertaking given on 18 July 2014. I think the Tribunal needed to give fuller and clearer reasons for their conclusion that there was more to it than that.

1. Both grounds of appeal are therefore made out and I must allow the appeal and remit the victimisation claim to the Employment Tribunal.

1. It is always tricky to decide in a case like this (which is basically one of inadequate reasons) whether to remit to the same or a different Tribunal. It is clearly inappropriate for there to be a re-hearing of the evidence and the existing Tribunal (subject to passage of time) is obviously in the strongest position to assess the evidence already given and any inferences to be drawn. On the other hand they have already expressed a conclusion and may have difficulty looking at the matter afresh rather than just rewriting the decision. On balance I have decided that the issue of causation raised by the victimisation claim should be remitted to the same Tribunal. It will be open to the parties to seek a review of that decision if they are so advised.