EAT Disability discrimination: Less favourable treatment / Harassment
Practice and Procedure: Application/claim / Amendment
The Tribunal applied wrong tests in respect of disability related discrimination. On the application of the right tests, based on the Tribunal’s findings of fact, its conclusions were clearly correct in respect of two claims, but three claims were remitted to the same Tribunal for fresh consideration of unresolved issues, primarily of detriment and justification. The three stage test explained (paragraphs 32 to 35).
In regard to harassment, the Tribunal did not originally reach a decision, and did so after a Bu rns/Barke referral, when a review was refused: the decision not to review, by reference to primarily s3B(2) of the DDA, was upheld.
The Respondent’s cross appeal was allowed, since the Appellant’s bonus claim, only referred to in closing written submissions exchanged after close of evidence, was plainly not pleaded and out of time and no application to amend was sought, and it should not have been permitted.
A firm recommendation is given to employment tribunals to allow the opportunity for some oral argument where closing written submissions are exchanged. Had the Tribunal done so in this case, most of the problems raised by the appeal and the cross-appeal would not have arisen (paragraph 88).
Judges:
Burton J
Citations:
[2007] UKEAT 0259 – 07 – 0211
Links:
Citing:
Cited – Shergold v Fieldway Medical Centre EAT 5-Dec-2005
The claimant had submitted a grievance complaining in general terms of the way in which she had been treated by a manager. She did not, however, refer to a particular incident relied on in her pleading as one of the two ‘last straw’ incidents that . .
Cited by:
Cited – Cumbria Probation Board v Collingwood EAT 28-May-2008
EAT DISABILITY DISCRIMINATION
Disability / Disability related discrimination / Reasonable adjustments
JURISDICTIONAL POINTS
>2002 Act and pre-action requirements
The date of disability is . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 12 July 2022; Ref: scu.261965