EAT Victimisation Discrimination – An Employment Tribunal refused applications by a Health Board to strike out some allegations that the Claimant doctor (a ‘worker’ within the extended definition section 43K ERA 96) had been subject to detriment. The appeal centred on the meaning of s.47B. Held that ‘subjected to’ were words of causation, appropriate to encompass both direct acts and deliberate omissions to act, and did not require the actor to control the circumstances giving rise to detriment: that a ‘deliberate failure to act’ presupposed a duty or power/ability to take action (an expectation would not be sufficient), and that although establishing that the ‘reason why’ there was an act or failure to act was the making of a protected disclosure would not be easy, the ET had been right not to strike out the claims in advance of hearing evidence of the detailed factual circumstances, evidence of the contract between the Board and the doctor, and being assured evidentially or by agreement of the statutory powers and functions of the Board.
Langstaff P J
[2013] UKEAT 0044 – 13 – 2404
Bailii
England and Wales
Employment
Updated: 31 October 2021; Ref: scu.510165