In the case of Sheikh v ADT (Tyco) Fire & Security UKEAT/0095/18/JOJ, Mr Sheikh claimed that he was subject to less favourable treatment because of race and/or disability in that he was being denied an opportunity for promotion by way of a grade rise, even though other non-disabled people had been promoted. He claimed that he had been waiting 6-7 years for a grade rise and 4 years for an appraisal. His claim of race and disability discrimination was dismissed by the ET and he appealed.
The EAT dismissed the appeal. They rejected the Claimant’s argument that he had made numerous requests for appraisals. The ET found as fact, on evidence which it was entitled to accept, that there was only one appraisal and the Claimant had not sought another.
The facts in Sheikh v ADT (Tyco) Fire & Security
The Claimant had worked as an engineer for the Respondent since 2006. The Respondent’s appraisal system was not very effective but engineers could request an appraisal if they wished a grade increase. The Claimant did so on 21 November 2012. The Claimant stated that Mr Baldwinson, his appraiser who also worked for the Respondent, made derogatory comments about the Claimant’s IT skills. The Claimant scored 72 out of 124 in the appraisal and Mr Baldwinson encouraged him to improve his IT skills. The procedure, in so far that there was one, to a grade increase had three components: an appraisal providing a target/goals setting, a meeting to follow up on this and a third requirement of a written grade test.
The tribunal found that the Claimant (who was a litigant in person) never asked for a second appraisal (stage 2) or to take a written test (stage 3). The tribunal had also found that at the initial hearing, the Claimant had been unable to present evidence showing that other engineers were being promoted in front of him and that this was because of discriminatory motives. The Claimant’s complaint, the tribunal felt, was a generic one about his lack of promotion and he could not mention any names of those promoted unfairly above him.
The decision of the EAT
The EAT concluded that the appeal had been allowed in order to deal with the fact that the Claimant believed that the tribunal had failed to deal with the assertion in his grievance letter that the Respondent would have been able to identify individuals who had been promoted, from its own records and this might have revealed disability/race discrimination.
The EAT stated that the task of the Tribunal had been to establish not why the Claimant had not progressed beyond grade 4, but to decide whether there was evidence before it from which it could conclude, absent any explanation, that the reason for his failure to progress was his disability. To that end the onus was on the Claimant to establish a prima facie case including the adducing of comparator evidence showing that his treatment was less favourable.
The EAT considered that the Claimant had not done so before the tribunal, that the tribunal was entitled to come to the decision it did and that there was no basis for the appeal which would be dismissed.
Our solicitors’ view on Sheikh v ADT (Tyco) Fire & Security
Caroline Lewis, a specialist employment solicitor at Redmans, commented on the case: “This case helps remind us of the advice provided by the CAB and Employment Tribunal Service to litigants in person that: “When you make a discrimination claim, you need to provide the employment tribunal with evidence from which it could decide that discrimination has happened. Only then is the employer required to show that discrimination has not happened. The obligation on you to provide this evidence is called the initial burden of proof. When you’ve done so, the burden of proof shifts to your employer. To satisfy your burden of proof, you need to show the tribunal facts from which the tribunal could decide, without any other explanation from your employer, that you’ve been discriminated against. If you can’t show these facts, your claim won’t succeed”.