Lecturer refused university promotion loses appeal against Employment Tribunal’s dismissal of claim

About this case:

• Citation:
  [2024] EWCA Civ 191
• Judgment:
  External link
• Court:
  England and Wales Court of Appeal
• Judge:
  Lady Justice Elisabeth Laing

Simon Pipe, a former BBC journalist and grade 6 lecturer at Coventry University, sought to establish that the ET and the Employment Appeal Tribunal had reached a perverse conclusion when deciding that the unfavourable treatment he received did not arise as a consequence of his disability.

The appeal was heard in the Court of Appeal by Lord Justice Bean, Lord Justice Moylan, and Lady Justice Elisabeth Laing. Schona Jolly KC and Joshua Jackson appeared for the appellant and Ed Williams KC and Anthony Johnston appeared for the respondent.

Business case

The appellant left the BBC in 2011 and achieved an MA in online journalism that year. He started working for the respondent in 2012, initially on an hourly-paid basis but eventually progressing to a full-time grade 6 assistant lecturer. Between 2017 and 2019 the appellant applied for progression three times under the respondent’s progression framework. None of these applications succeeded, nor did attempts he made to have the university promote him as a “reasonable adjustment.” He later resigned and raised claims under the Equality Act 2010 before the ET.

It was noted that in 2015 the respondent adopted a corporate strategy which included a policy to increase the number of academic staff with doctorates by 30%. This included new criteria for promotion to grade 7, which included either having a PhD or having shown an equivalent contribution to professional practice. An occupational health assessment of the appellant carried out in 2017 concluded that reasonable adjustments should be made for the appellant’s disability, but these did not include promotion outside of the framework.

The ET concluded that it was clear that the reason Mr Pipe had not been promoted was his lack of a PhD or inability to show a clear business case for his promotion. The feedback from his line manager was that there was no business case for the post he wanted. Adjustments argued for by the appellant, including the creation of a new role to teach professional practice, were not reasonable.

It was submitted for the appellant that the concept of a “business case” was ambiguous. The ET had failed to properly consider disadvantage as it had not properly understood the policy, criteria or practice which imposed the relevant disadvantage. For the respondent it was submitted that the high threshold for success in a perversity challenge had not been met. The ET had not lost sight of Mr Pipe’s individual circumstances but was correct to find that the adjustments he proposed were not reasonable.

Show-stopper

In an opinion with which the other judges agreed, Lady Justice Elisabeth Laing said of the previous decisions: “It is clear that the ET understood that it was not to apply what Ms Jolly called ‘a strict causation test’. It understood the law on justification/proportionality, and, in particular, first, that a decision on reasonable adjustments is a relevant context for those questions, and, second, that there are cases in which a finding that a PCP is justified will mean that its application in an individual case will also be justified.”

She continued: “The lack of a business case was a show-stopper. An able-bodied person who applied for promotion to grade 7 from the Faculty in 2017 and 2018, and an able-bodied person who applied from anywhere in the University in 2019, would have encountered exactly the same road-block, and would not have been promoted to grade 7. That meant that there was no room at all, as the ET found, for anything arising from Mr Pipe’s disability to play a causal role of any kind.”

Considering the remaining grounds of appeal together, Laing LJ said: “Counsel had agreed that in some cases, where the reason for treatment is a PCP, the question whether a treatment satisfies a proportionality test (ground ii.), or whether a PCP is proportionate (ground iv.) will depend on whether the treatment or PCP is proportionate (or justified, in other words). That is a relevant legal principle. It was applied by the ET in this case. I can see no basis for a suggestion that, in some way, the ET misunderstood or misapplied that principle to these facts.”

She concluded: “If the ET, as I consider it was, was entitled to apply that legal principle in this case, that leaves no room for any argument that the ET erred in law in not expressly factoring the effect on Mr Pipe into its consideration of proportionality/justification. The proportionality of the PCP may be treated as a legitimate proxy for the application of the proportionality test to an individual case.”

The appeal was therefore dismissed.