There may be circumstances in which there is conduct separable from the protected act. In Martin v Devonshires Solicitors [2011] ICR 352 , Mr Justice Underhill stated:
In Martin Underhill J doubted that the burden of proof provisions would be of much assistance in cases of this sort:
In Page v The Lord Chancellor [2021] EWCA Civ 254 , [2021] ICR 912 Lord Justice Underhill applied what he had said in Martin and stated:
Where a claim is remitted from the EAT to the Employment Tribunal the jurisdiction of the Employment Tribunal is limited to determining the specific question or questions remitted. In LTRS Estates Ltd (t/a Orwells) v Hamilton UKEAT/0230/12 Mr Justice Langstaff (President) stated at paragraph 13:
Analysis
Unfortunately, the appeal is clearly made out. HHJ Shanks stated that the judgment of the Employment Tribunal "begs the question whether the breakdown was in substantial part because the Claimant had brought ET proceedings naming, in particular, his line manager". In that context he said that the Employment Tribunal should have considered "whether the breakdown resulted only from the manner (or other features) of those proceedings which were properly separable from the fact of the bringing of the proceedings". The order of HHJ Shanks stated that the issue for the Employment Tribunal was "whether the Appellant was suspended and/or dismissed because he had done a protected act" and that the Employment Tribunal should consider in particular "whether, in so far as the reason for his suspension and/or dismissal involved features related to or arising from any protected act, those features were "properly separable" from the protected act". The context was that it was a given that relationships had broken down – the remission required the Employment Tribunal to consider whether the breakdown was in substantial part because the claimant had brought ET proceedings or because of other matters that were properly separable.
If the respondent disagreed with the basis on which the matter was remitted it should have raised any problem with HHJ Shanks at the earliest opportunity, or appealed his determination. They did neither.
The terms and basis of the remission set the limit of the jurisdiction of the Employment Tribunal. Instead of doing what was required by the remission, the Employment Tribunal only asked itself the question "whether the protected acts contributed to the Claimant's suspension and later dismissal". The Employment Tribunal did not consider separability. Reading the judgement as a whole it is clear that the main conclusion was that the reason for suspension and dismissal was that relations had broken down between the claimants and his colleagues and manager. That was already taken as a given, and the core issue remitted to the Employment Tribunal was whether that breakdown was solely as a result of matters that were properly separable from the protected acts. As stated above if the respondent thought that was the wrong question they should have challenged the judgment of HHJ Shanks.
The remission did not require the Employment Tribunal to apply the burden of proof provisions, which Underhill LJ noted in Martin may not be particularly helpful in cases of this nature. In circumstances in which, on any view, the starting point of the breakdown in relations that resulted in the claimant's suspension and dismissal were his allegations of discrimination, it is hard to understand how the Employment Tribunal could have concluded that a prima facie case of victimisation had not been made out. The Employment Tribunal held, in case it was wrong in deciding that the burden had not shifted to the respondent, that the respondent "had demonstrated non-discriminatory reasons for both the suspension and the dismissal". As Judge Stout noted, the Employment Tribunal appears to have been applying the test for direct discrimination rather than victimisation. All that said, the burden of proof is not the subject of a specific ground of appeal, and is not of any great relevance because the matter was remitted primarily to answer the question of whether the breakdown in relations that resulted in suspension and dismissal was only because of matters that could properly be separated from the protected acts.
The Employment Tribunal should bear in mind that the fact that the allegations had not been established did not mean that the claimant was not protected by the victimisation provisions. A concern that discrimination claims might be brought in the future could fall within section 27(1)(b) EQA as involving a belief that the claimant "may do" a protected act.
The matter will have to be remitted once again to the Employment Tribunal. The remission will have to be to a differently constituted Employment Tribunal because the failure to answer the key question that was remitted was a fundamental error. The question the Employment Tribunal asked itself resulted in it making the same error that resulted in the successful first appeal. The remission is on the terms as previously set out by HHJ Shanks which still govern the jurisdiction of the Employment Tribunal.