PRACTICE AND PROCEDURE – Striking-out/dismissal
DISABILITY DISCRIMINATION – Disability related discrimination
This was an appeal against a decision of the Employment Judge to refuse an application to strike out a claim for direct discrimination, a failure to make reasonable adjustments, and harassment related to a disability, and unfair dismissal. The Claimant was a Senior Veterinary Inspector. There were issues of underperformance in early 2015 to February 2016. The Claimant was diagnosed with prostate cancer on 8 February 2016 and informed his employer on the 9 February 2016. On the 17 February 2016, the employer terminated his employment. The Claimant contended that the high PSA levels prior to the diagnoses affected the workings of the brain and led to the mental impairment that caused his underperformance. At a Preliminary Hearing to consider these issues, the Tribunal found that the evidence was insufficient to conclude that there was any connection between the raised PSA level and the mental impairment leading to underperformance and concluded that the disability claims had no reasonable prospect of success. The Tribunal declined, however, to strike out the three disability claims in relation to the period from 9 February 2016. He also declined to strike out the unfair dismissal claim taking account of the disability claim and potential evidential uncertainties.
The Tribunal’s decision not to strike out the disability claims was perverse in the sense that it was illogical. Having found that there was no factual connection or link between the underperformance and the prostate cancer, and having found that the claims had no reasonable prospect of success, it was illogical not to strike out the claim. The appeal on those issues would be allowed and an Order striking out the three disability claims would be substituted. In relation to the unfair dismissal, the Tribunal erred in so far as it took into account the disability claims (as those have been struck out). The appeal against the refusal to strike out that claim would be allowed for that reason but the matter would need to be remitted to the Employment Tribunal to determine whether the claim for unfair dismissal had no reasonable prospects of success.
Citations:
[2018] UKEAT 0154 – 18 – 2012)
Links:
Jurisdiction:
England and Wales
Employment, Discrimination
Updated: 14 June 2022; Ref: scu.635149