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How should employment tribunals make determinations on preliminary issues in discrimination claims?

With careful and reasoned analysis held the EAT in Rooney v Leicester City Council.

The claim was brought by Ms Rooney who was a childcare social worker employed by Leicester CC since 2006. In 2017 Ms Rooney entered the menopause and had a number of periods of sickness absence with menopausal symptoms and work-related stress. Leicester CC managed this absence in what Ms Rooney felt was an insensitive and heavy-handed way, which lead to her resigning in October 2018.

Ms Rooney brought two separate tribunal claims, the second of which argued that her menopausal symptoms were a disability and that she had been discriminated against by the Council in relation to her disability and her sex. These claims were considered and struck out at a tribunal preliminary hearing in November 2019. The tribunal found that Ms Rooney's menopausal symptoms were not a disability and that there was insufficient evidence of sex discrimination for the claim to proceed.

The EAT overturned this decision on appeal and found that the tribunal had failed to provide sufficient reasoning to support either decision. The tribunal had not explained why Ms Rooney's condition did not meet the disability threshold under s6, it was unclear if the tribunal's finding was based upon the longevity of her condition or its impact. The sex discrimination finding had not considered the evidence which Ms Rooney put forward in a Scott Schedule. The claim was remitted back to the tribunal to consider these issues.

Thanks to Mark Alaszewski of didlaw for preparing this case summary.