Joseph England successful in EAT appeal concerning the discrimination burden of proof and reasonable adjustments

20th September 2022

Lucas v Cosmeceuticals Ltd [2022] EAT 141

Heard in Scotland before Lord Fairley, the EAT dismissed the appeal and found in favour of the Respondent, represented by 3PB’s Joseph England. The judgment can be found here.

The principal ground of appeal concerned a s.15 Equality Act 2010 claim and the link between the Claimant’s dismissal and the ‘something arising’ in consequence of the Claimant’s disability. The Employment Tribunal made a finding that there had been “no evidence” of this link and the Claimant appealed on the basis that this was a misapplication of the burden of proof provisions from s.136 EA 2010 and not Meek compliant.

The EAT instead agreed with Mr England’s submission that there was no error. The EAT agreed that where there had been a valid finding of ‘no evidence’ it was neither “necessary or appropriate” for a Tribunal to consider the burden of proof provisions of s.136 because this finding meant there was no prima facie case raised that could shift the burden of proof to the Respondent. The EAT noted there was no perversity appeal and re-affirmed previous case law, notably from the Supreme Court in Royal Mail Group v. Efobi [2021] UKSC 33 and EAT in Secretary of State for Justice v. Dunn EAT/0234/16.

Four further grounds related to the ‘failure to make reasonable adjustments claims and again Mr England was successful in defending the appeal on these grounds. Various aspects of the reasonable adjustment claims were appealed but the grounds failed because of reasons including the validity of the factual findings the Tribunal had made that cut across the alleged errors and criticism by the Appellant that was “unduly pedantic”.

The appeal posed particular challenges because Joseph came to the case at the appeal stage; the original trial having been conducted by a colleague who has since become a salaried Employment Judge. Joseph was instructed by Nash & Co.

For more information or to instruct Joseph England, contact his clerks Russell Porter or David Fielder.