ir_millarEAT2008
EAT PRACTICE AND PROCEDURE: Perversity
UNFAIR DISMISSAL: Reasonableness of dismissal
The Employment Tribunal found that the claimant had been unfairly dismissed and subject to disability discrimination. The dismissal was found to be unfair for procedural reasons. The disability discrimination resulted from a failure by the employers to make a reasonable adjustment, namely to offer the claimant alternative employment at the appropriate time. The employers contended that these conclusions demonstrated errors of law, principally on the grounds that they were based on findings of fact, and inferences drawn from those facts, which were not sustained by the evidence and were indeed inconsistent with it. Alternatively, the conclusions were perverse.
The EAT dismissed the appeal and held that the findings were open to the Tribunal notwithstanding that many tribunals would have assessed the evidence differently. The EAT did also emphasise, however, that in assessing unfair dismissal compensation the Tribunal must apply a Polkey analysis and assess the likelihood of the claimant remaining in employment even had proper procedures been complied with. A similar exercise would also need to be applied when assessing the loss flowing from the disability discrimination.
The EAT dismissed a cross appeal against the Tribunal’s finding that compensation for unfair dismissal should be reduced by 30% for contributory fault.
Elias P
[2008] UKEAT 0003 – 08 – 0411
Bailii
Employment, Discrimination
Updated: 09 November 2021; Ref: scu.278204