In a notable legal achievement for the Appellant Mr. J Logo, a former employee of, Payone GmbH, a subsidiary of Worldline, the appellate court has delivered a resounding judgment overturning the decision of the Employment Tribunal. The appellate court’s comprehensive ruling, which can be accessed on the UK National Archives website [link: https://caselaw.nationalarchives.gov.uk/eat/2024/9], not only underscores an error in the Employment Tribunal’s analysis but also shines a spotlight on the critical issue of “justification” in claims of indirect discrimination.
The appellate court’s decision marks a significant milestone in what the Appellant says is his pursuit of justice and fair treatment in the workplace. The Apellant raised four grounds of appeal against the original decision of the Employment Tribunal, challenging the tribunal’s dismissal of his complaints of indirect discrimination. At the heart of the case were allegations concerning the discriminatory impact of language policies and practices (PCPs) implemented by Payone GmbH, specifically regarding the use of English in the workplace and during business meetings.
When attending team-building meetings at the firm’s Frankfurt office, having travelled from the UK he was consistently relegated to the back of the room while meetings proceeded in German. This occurred despite the job descriptions for all Key Account Managers like himself, clearly stipulating fluency in English as a requirement.
Payone GmbH argued that the Employment Tribunal was justified in striking out the indirect discrimination complaints at a preliminary stage and it was obvious. Payon agreed with the fact “The Employment Tribunal considered that it was obvious that the respondent could not be expected to conduct its business in English for the benefit of one employee in the UK when the business was overwhelmingly based in German speaking countries with German speaking employees”.
Payone GmbH, contended that the facts presented during the initial tribunal proceedings were essentially undisputed. Furthermore, Payone GmbH asserted that even if there were any discrepancies in the facts, the subsequent determination of other claims during a full hearing indicated that the Employment Tribunal would have arrived at the same conclusion. Consequently, Payone GmbH viewed the appeal as academic, emphasising the thoroughness of the initial tribunal’s examination of the evidence and questioning the necessity of revisiting the matter through the appeals process.
The 39-paragraph judgment rejected Payone’s submissions and dismissed their Cross Appeal. Payone instructed the global law firm Orrick, Herrington & Sutcliffe who are also instructed in other matters related to 2022/2023 money laundering check protected disclosures that were the subject of a High Court order and a further hearing listed for 25 March 2024 at the Kings Bench Division.
The appellate court’s ruling was clear and unequivocal in its judgment of the Employment Tribunal’s failure to conduct a proper analysis of the “justification” issue under the Equality Act 2010. The court’s judgment analyses colcludes [paraphrased],
The tribunal granted significant leeway to the employer and was hindered by limitations in the strike-out process, resulting in a superficial assessment that failed to consider key factors. The tribunal’s failure to address the costs to the respondent and the difficulty in accommodating the claimant’s needs further underscored the inadequacy of the analysis. The judgment did not address the expenses incurred by the respondent to maintain the previous level of support for the English section of the website. Additionally, the Employment Tribunal did not assess the challenges the respondent might face in conducting certain parts of meetings and recruitment exercises in English to accommodate the claimant. It is suggested that a more detailed analysis by the Employment Tribunal may lead to the conclusion that each PCP is a proportionate means of achieving a legitimate aim. However, such determinations should be based on substantive evidence that allows the claimant a fair opportunity to challenge, rather than through a summary strike-out application.
The appellate court’s judgment also drew upon established legal principles, citing the insightful statement of Balcombe LJ in Hampson v Department of Education and Science [1989] ICR 179, 191, which was approved by Pill LJ. The statement emphasises that ‘justifiable’ requires an objective balance between the discriminatory effect of the condition and the reasonable needs of the party who applies the condition. This citation underscores the importance of an impartial assessment of the discriminatory impact of workplace policies. Also,
Applications to strike out are typically appropriate when the pleaded case clearly presents a decisive blow, usually requiring consideration of only a limited number of documents. As highlighted by HHJ Serota QC in QDOS Consulting Ltd v Swanson UKEAT/0495/11, there is a temptation for parties to seek procedural shortcuts to avoid the high costs associated with Employment Tribunal hearings, both in terms of legal expenses and the time employees spend attending lengthy proceedings. However, such applications should only be pursued in cases where there is no factual dispute and the applicant can demonstrate that there are no reasonable prospects of success. Complex cases involving extensive document review and disputed evidence, especially those related to discrimination, are not suitable for strike-out applications under rule 18(7)(b) and should be resolved through a full hearing. Parties are advised to focus their efforts and resources on preparing for a thorough examination of the issues rather than pursuing what may seem like convenient shortcuts. Oral evidence should rarely be required for such applications, which should be expedited and concluded within a matter of hours rather than days.
As a result of the appellate court’s ruling, the case has been remitted to a different tribunal for further consideration. While as he has told Loopline Media, this represents a step forward in Mr. Logo’s pursuit of justice, it’s important to note that the outcome does not signify a final victory. Rather, he says, it underscores the ongoing efforts to address alleged discriminatory practices in the workplace. The appellate judge’s decision not to consider the matter again before the same Employment Tribunal highlights the recognition of errors in the original decision and the importance of ensuring a fair hearing. Moving forward, the management of the claim on remission will be at the discretion of the Regional Employment Judge, who will oversee the proceedings.
Loopline Media remains steadfast in their commitment to promoting equality and combating discrimination in all its forms. More on this case to follow…..
