EAT finds detriment to former council worker did not arise from helping disabled client, refuses appeal

About this case:

• Citation:
  [2026] EAT 95
• Judgment:
  External link
• Court:
  Employment Appeal Tribunal
• Judge:
  Lady Haldane

Claimant and appellant Stephen Leighton had worked for Renfrewshire Council as a team leader in its Autism Connections service, and left employment after he was referred to disciplinary proceedings following a complaint concerning his interactions with a client with autism and mobility issues he had helped in relation to a temporary change of housing. He argued that the ET was wrong to conclude that his actions were not a protected act within the meaning of the Equality Act 2010 and had further fallen into error in determining causation.

The appeal was heard by Lady Haldane, with the claimant appearing in person and the respondent represented by Laurence Cunningham, advocate.

Not protected act

The claimant’s core duties involved dealing with referrals from social work and mental health services, carrying out autism assessments to determine what services were required, and delivering training to colleagues on the subject of autism. During the Covid-19 pandemic in January 2021, he was asked by the respondent’s housing department if he could assist in moving a man with autism and mobility issues, Mr A, out of his rented property to allow work to be carried out there. Despite being outwith the broad remit of his duties, the claimant provided considerable support to Mr A until he moved back into his property.

On 6 August 2021 Mr A’s psychologist submitted a complaint on behalf of Mr A regarding the support provided to him, which also made allegations of breach of confidentiality. The claimant’s line manager advised him of the complaint and that it would be investigated, and he was moved to alternative duties to prevent him from coming into contact with Mr A. One of the issues raised proceeded to a disciplinary hearing, however the claimant left the employment of the respondent prior to this taking place.

It was held by the Employment Tribunal that the support provided to Mr A was not a protected act within the meaning of section 27(c) of the Equality Act 2010. While it was established that moving the claimant to alternative duties was a detriment, it was not the case that because Mr A was disabled every interaction with him was a protected act. What motivated the respondent to move him to alternative duties was the complaint, not the actual support that was provided.

In his skeleton argument, the claimant argued that the ET fell into error in its approach to the question of whether or not he had carried out a protected act. The correct approach was to determine whether the support provided by the claimant to Mr A was for the purposes of, or in connection with, the Equality Act. In that respect the test was met as the support provided allowed the respondent to fulfil the Public Sector Equality Duty.

For the respondent it was submitted that the ET had addressed its mind to the correct test and reached a permissible finding in fact. Even where a protected disclosure was made, the employer can lawfully discipline the employee for a manner in which a disclosure was made, that can be severable from the facts of the disclosure itself.

Regarded as separable

In her decision, Lady Haldane said of whether the claimant’s conduct amounted to a protected act: “The difficulty with [the ET’s] conclusion is that it does not reflect the case actually being advanced. The claimant was not suggesting that each and every interaction with Mr A amounted to a protected act. He founded specifically on the request to provide Mr A with assistance moving out of his accommodation and back again, something outwith the claimant’s normal duties and in respect of which he had to request permission from his line manager. The ET does not engage with that factual matrix.”

She continued: “What is missing from the analysis of the ET in addition to engagement with what specific protected act it is that the claimant is founding upon, is any analysis of, or engagement with, the purpose for which the claimant contended he had engaged in the protected act. For all those reasons, there is a lacuna in the reasoning of the ET such that it cannot be said with confidence that it has engaged with the relevant test set out in s 27(c) of the Equality Act. The claimant has demonstrated in this regard that the ET fell into error.”

Considering whether the error vitiated the findings of the ET, Lady Haldane said: “The ET was also required to consider whether the one detriment it found established – that is moving the claimant to alternative duties – arose because of the alleged protected act. The claimant contends that the ET has applied a ‘but for’ test to this question. However, although it has not expressed itself under reference to any particular authority, it can be seen from the language employed by the ET that it has not, read fairly, done so. In fact, it has [concluded that] the only reason that the claimant was moved was because of the complaint.”

She added: “The underlying factual findings, most significantly the dual aspect to the complaint and the finding that the claimant was moved to other duties to avoid contact with Mr A, support that conclusion which is expressed in language that is redolent of the correct test being employed. The ET was permitted, in the face of the facts it found established, to regard the complaint as separable from the protected act and come to the conclusion that it did. Although somewhat sparingly expressed, I can discern no error of law in the approach of the ET to the question of causation.”

Lady Haldane therefore concluded: “As both parties properly recognised, the central questions of protected act and detriment must be causally linked and therefore these two issues stand or fall together. The error in the analysis of the first question cannot give rise to a successful appeal absent a similar flaw in relation to the second. It follows that the appeal as a whole falls to be refused.”