EAT UNFAIR DISMISSAL
Reason for dismissal including substantial other reason
Compensation
DISABILITY DISCRIMINATION – Disability related discrimination
The decision of the Employment Tribunal that the dismissal of the Claimant pastry chef for using non-kosher jam in a product sold in an establishment subject to requirements of Kedassia was an act of victimisation under the Equality Act 2010 and therefore also unfair was not perverse. The ET made findings of fact which supported their conclusion that because the Respondent was not prepared to show the Claimant any ‘leniency’ the dismissal was an act of victimisation. The judgment of the ET should be read as a whole. Doing so it is clear that ‘leniency’ means mitigation of the penalty which may have been decided upon if the Respondent had investigated the Claimant’s explanation for his conduct and interviewed other employees involved and conducted a fair appeal hearing. The criticisms of the cursory nature of the investigation of events against the background of regarding the Claimant as a ‘problem employee’ because of his continuing requests for reasonable adjustments supported the inference of victimisation. Perversity ground of appeal dismissed.
The ET erred in failing to consider contributory fault in assessing the compensatory award for unfair dismissal. Although the issue of reduction under Employment Rights Act 1996 section 123(6) had not been raised in the ET3 or at the hearing, the Employment Tribunal having found that the Claimant was guilty of gross misconduct by using non-kosher jam and that this action led to the disciplinary proceedings against him, erred in failing to consider of its own motion whether and if so to what extent it was just and equitable to reduce the compensatory award for unfair dismissal. Swallow Security Services Ltd v Millicent UKEAT/0297/08 (unreported) applied. The issue of reduction for contributory fault remitted to the Employment Tribunal. The outcome may not make any or any substantial difference because of the overlap with compensation for victimisation.
Slade J
[2013] UKEAT 0616 – 12 – 3107
Bailii
Employment Rights Act 1996 123(6), Equality Act 2010
England and Wales
Citing:
Applied – Swallow Security Services Ltd v Millicent EAT 19-Mar-2009
EAT UNFAIR DISMISSAL: Contributory fault
The employers dismissed the employee after a bogus redundancy exercise, after she had knowingly taken paid holiday in excess of her holiday allowance and failed to . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 02 November 2021; Ref: scu.514289
