Elaine Banton succeeds in all 3 Grounds of Appeal in the Employment Appeal Tribunal

Elaine Banton successfully wins appeal in the Employment Appeal Tribunal in Pal v Accenture UK.

The Appellant/Claimant, Ms Pal, a former manager at Accenture for 10 years, was dismissed in 2019 for alleged underperformance linked to not being “promotion ready” under the consultancy’s progression-based model (“up or out”). At the time, she was also experiencing significant symptoms from endometriosis. She lost her claim before the Employment Tribunal (ET) but appealed to the Employment Appeal Tribunal (EAT) on these grounds.

The Tribunal’s Findings

In May 2022, the ET held that Ms Pal had been unfairly dismissed due to procedural failures by Accenture. She was dismissed under a process designed for misconduct rather than capability, and the investigation contained several defects. The dismissal panel was also improperly constituted and individuals involved in the management process were the same people making the dismissal decision, contrary to Accenture’s own policy requirement for independence. However, despite finding the dismissal unfair, the ET awarded no compensatory award, applying a 100% Polkey reduction. The tribunal concluded that even if a fair process had been used, the outcome would have been the same. The ET also held that Ms Pal was not disabled within the meaning of the Equality Act 2010. She appealed on all three issues.

The Employment Appeal Tribunal’s Findings:

1. The Polkey Reduction

The EAT held that the Tribunal erred regarding the Polkey reduction and applied the wrong counterfactual. A Polkey reduction must be based on what the employer would or might have done had it corrected the procedural defect. It is not a prediction of what the Tribunal itself would have done.

The ET effectively substituted its own view for the employer’s. Accenture had provided no evidence explaining what it would have done or how it would have corrected the procedural failings. The EAT held that applying a 100% reduction in such circumstances was unsound. This ground succeeded and was remitted to the ET to determine what would have appeared if Accenture had carried out a proper, independent investigation and used independent decision-makers, as required by its own policy.

2. The Progression-Based Model (“Up or Out”)

Accenture’s progression based model in the ‘Client & Market’ career track implies that if an employee isn’t deemed to be ready for promotion within a certain period of time at their level, they might face dismissal. Ms Pal argued that this model is unfair in law on the basis that the Employment Rights Act 1996 only permits dismissal relating to underperformance in the position the employee held, not on the basis that an employer considered an employee is not ready for the job at the next level up.

Upholding this ground of appeal, the EAT confirmed that an employee may only be dismissed for “the work of the kind which he was employed to do” assessed on the basis of the work required under the contract of employment. Consequently dismissal under the progression based model may not be fair under the heading of ‘capability’. The EAT considered that a contract may set out that the work required may include demonstrating the ability for promotion, but the employer would still need to show this was fair if the employee had not actually carried out the next level of work. This ground also succeeded.

3. Disability Discrimination, Endometriosis

Ms Pal suffered from endometriosis, diagnosed in September 2018, and underwent surgery shortly before her dismissal. She returned to work on a phased basis, and her employment was terminated just three months later. The ET held she was not disabled, finding she had not demonstrated a substantial and long term adverse effect on day-to-day activities, and that Accenture lacked actual or constructive knowledge of disability.

The EAT found the Tribunal’s reasoning was “wholly inadequate.” It held that the ET had formed an overly adverse view of her credibility and then failed to engage properly with her disability impact statement, despite medical evidence supporting her account.

The Tribunal had also not considered the likelihood of recurrence when there was a report already highlighting a recurrence in March 2019. It also failed to consider what the position would be if Ms Pal didn’t have medical treatment.

The EAT held that recovery from surgery can itself constitute a substantial adverse effect. The ET failed to consider the likelihood of recurrence, even though recurrence was documented in March 2019. The ET did not examine whether Accenture should reasonably have been aware of disability, given her sick leave, surgery and phased return.

The ET’s two paragraphs proportionality assessment was inadequate. The Tribunal can only carry out the necessarily rigorous balancing exercise when the other factors have been determined. Given these errors Ground 3 all grounds would be remitted back to a differently constituted ET.

4. Additional Point, Credibility

The EAT reiterated that broad, findings that one party is “credible” and the other is not, is rarely helpful. Tribunals should assess credibility issue by issue, recognising that even unreliable witnesses may be truthful on key points and reliable witnesses can still be mistaken. Overly generalised credibility assessments risk distorting the fact finding process.

Comment

This case has been welcomed in the disability space particularly by sufferers of chronic health conditions such as Crohn’s disease, sickle cell anaemia and other hidden disabilities.

Ms Sanju Pal was represented by Elaine Banton instructed by Gerard Airey of Kilgannon & Partners.

You can read the full judgment here.

The Times here.

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