Background
Mr Laffy, a white male teacher over 60, was employed by Capital City College Group. His working relationship with a colleague, Ms Odu, broke down following a series of incidents from October 2021 onwards. The Tribunal found that Ms Odu had behaved unprofessionally on multiple occasions — including shouting at the Claimant, ignoring him in front of students, making a gun gesture, and whispering insults in his ear. The Claimant filed numerous formal complaints about her conduct, most of which the College investigated, though he was dissatisfied with the outcomes.
The dispute escalated in July 2022 when Ms Odu, during a meeting called to address her own conduct, falsely alleged that the Claimant had called her a highly offensive racial and sexual slur. The Tribunal found as fact that the Claimant had never made that remark and that Ms Odu fabricated it to deflect attention from her own behaviour. The College declined to investigate the allegation after Ms Odu declined to pursue it formally. Instead, both parties were issued a “standards letter” reminding them of professional conduct expectations. The Claimant, who regarded the letter as tantamount to disciplinary action, subsequently went off sick and his employment terminated in February 2023.
The Claimant brought Employment Tribunal proceedings alleging harassment, direct discrimination on grounds of sex, race and age, victimisation, constructive unfair dismissal, and holiday pay claims. The Tribunal upheld the constructive unfair dismissal claim but dismissed all discrimination claims. The Claimant appealed to the EAT solely on the ground that the Tribunal had erred in finding no evidence capable of shifting the burden of proof under section 136 of the Equality Act 2010.
The Court’s Holding
The EAT (Sarah Crowther KC, Deputy Judge of the High Court) dismissed the appeal. The Tribunal had correctly directed itself on the two-stage Madarassy test: at stage one, the claimant must establish a prima facie case — mere difference in protected characteristics and difference in treatment is not, without more, sufficient. The EAT found that the factual premises underpinning the appeal were inconsistent with the Tribunal’s unchallenged findings of fact. The College had not acted “immediately” on Ms Odu’s allegation, had not issued a formal warning, and had not ignored the Claimant’s complaints — it had investigated multiple incidents, suggested mediation, and appointed an external investigator to consider his grievances.
On allegations 3 and 4 (failure to investigate Ms Odu’s false allegation and failure to discipline her), the Tribunal’s finding that the burden had not shifted was an open finding of fact. In any event, the Tribunal had conducted a stage-two analysis in the alternative and found that the College had discharged any burden: it declined to investigate because Ms Odu had withdrawn the complaint, and that was a non-discriminatory explanation. The College’s decision to treat the withdrawal as an opportunity to draw a line and reinforce professional standards, rather than proceed with an investigation, had nothing to do with the protected characteristics of either party.
The EAT also rejected the Claimant’s refined argument that Ms Odu’s withdrawal could not logically justify inaction, because the complaint had been made in the first place. The EAT held that argument went beyond how the issue was framed in the agreed list of issues at the Tribunal and did not reflect the Tribunal’s holistic findings on how the College actually approached the situation. The hypothetical comparator analysis — whether a younger, female, or non-white employee in the Claimant’s position would have been treated differently — was conducted correctly, and no evidence had been adduced that the College would have acted differently for any such comparator.
Key Takeaways
- A difference in protected characteristics and a difference in treatment is not, without more, sufficient to shift the burden of proof under section 136 of the Equality Act 2010; there must be something more from which a tribunal could conclude, on the balance of probabilities, that unlawful discrimination occurred.
- Where a tribunal makes unchallenged positive findings as to an employer’s motivation — including a non-discriminatory reason for its conduct — an appellate challenge to the burden of proof analysis is unlikely to succeed, because the tribunal was entitled to find the reason had nothing to do with any protected characteristic.
- An employer’s decision not to continue investigating a serious allegation after the complainant withdraws it can constitute a legitimate, non-discriminatory explanation, even where the underlying allegation was false and caused distress to the accused; fairness to the accused does not require that motive to be linked to a protected characteristic.
- Grounds of appeal must be anchored to findings actually made by the Tribunal; the EAT will not entertain reframed arguments that are inconsistent with unchallenged factual findings or go beyond the agreed list of issues.
Why It Matters
This decision reinforces the rigour required at the first stage of the Madarassy burden-of-proof test in direct discrimination claims. It confirms that tribunals are not required to shift the burden merely because an employer handled complaints in an uneven or unsatisfactory manner; the claimant must identify specific facts capable of supporting an inference of discrimination on a protected ground. Employers facing contested disciplinary processes involving parties of different characteristics will take comfort from the finding that declining to investigate a withdrawn allegation can, on appropriate facts, constitute an entirely non-discriminatory response.
The case also illustrates the limits of appellate intervention in discrimination cases: where the Employment Tribunal has applied the correct legal framework and reached factual conclusions open to it on the evidence, the EAT will not disturb those findings even where the underlying facts — including a proven false allegation — are deeply troubling for the individual claimant. The judgment serves as a practical reminder that a sense of grievance, however understandable, does not itself constitute evidence from which discrimination can be inferred.