Fullah v Medical Research Council: when remission requires a fresh Employment Tribunal panel

In Fullah v Medical Research Council & Ors [2026] EAT 28, the Employment Appeal Tribunal has again allowed an appeal arising from a victimisation claim — this time because the Employment Tribunal on remission failed to address the specific causation question it had been directed to determine. The matter is remitted once more, but now to a freshly constituted tribunal.

Mr Fullah, a black British IT officer employed by the Medical Research Council from 2001 until his dismissal in May 2017, had brought two Employment Tribunal claims for race and disability discrimination. Both were unsuccessful. When he returned to work following the second tribunal hearing in February 2017, he was immediately suspended and subsequently dismissed on the basis that the working relationship between him and his colleagues had irretrievably broken down.

The first Employment Tribunal held that the dismissal was not an act of victimisation, finding the reason to be the breakdown of the working relationship rather than any protected act. On appeal, HHJ Shanks upheld the finding on suspension as a detriment but remitted the causation question. He identified the critical issue as whether the breakdown in relations was in substantial part attributable to the fact that Mr Fullah had brought tribunal proceedings — including proceedings naming his line manager — or whether the matters relied upon were "properly separable" from the protected acts, applying Martin v Devonshires Solicitors [2011] ICR 352.

The remitted hearing and second appeal

The Employment Tribunal on remission dismissed the claims again. It asked itself whether the protected acts had "contributed" to the suspension and dismissal, and concluded they had not — the proceedings had merely set the timetable for the respondent's actions. In the view of HHJ Tayler, this fundamentally missed the point.

The sealed order from HHJ Shanks had required the tribunal to address specifically whether the features of the reason for dismissal were "properly separable" from the protected acts. The breakdown in the working relationship was already taken as a given. The remitted question was whether that breakdown was solely the result of matters capable of being separated from the protected acts, or whether it was in substantial part caused by the fact that Mr Fullah had brought proceedings. By framing the question as one of contribution and failing to engage with separability, the Employment Tribunal replicated the very error that had generated the first successful appeal.

HHJ Tayler also noted that the tribunal appeared to have applied the test for direct discrimination rather than victimisation, referring to "non-discriminatory reasons" for the suspension and dismissal — a misdirection in a case governed by section 27 of the Equality Act 2010, where the focus must remain on the role played by the protected acts in the decision-maker's thinking.

Separability and its limits

The Martin principle permits an employer to distinguish between a complaint of discrimination as such and conduct forming part of that complaint which can genuinely be treated as separate — for example, violent or threatening language used in the course of making a complaint. However, as Underhill LJ confirmed in Page v The Lord Chancellor [2021] EWCA Civ 254, this is not a licence for employers to characterise ordinary, if unreasonable, behaviour as separable. Tribunals must be slow to draw that distinction and should do so only in clear cases.

In the present matter, the starting point of the breakdown was the claimant's allegations of discrimination. Concerns that further claims might be brought in the future could themselves fall within section 27(1)(b) EQA as a belief that the claimant "may do" a protected act — a point the next tribunal will need to address directly.

Remission to a fresh tribunal

Where an Employment Tribunal on remission fails to answer the question remitted to it, it exceeds the jurisdiction conferred by the remission order: LTRS Estates Ltd v Hamilton UKEAT/0230/12. Because the tribunal's error was fundamental — asking the same wrong question as before — the matter cannot return to the same panel. The remission is on the terms originally set by HHJ Shanks, which continue to govern the tribunal's jurisdiction.

The case is a useful reminder that a remission order defines and confines the Employment Tribunal's task. Where that order requires a specific legal question to be answered, a tribunal that substitutes a different question — however superficially similar — acts without jurisdiction and in error of law.

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