EAT DISABILITY DISCRIMINATION: Disability related discrimination
PRACTICE AND PROCEDURE: Striking-out/dismissal
Disposal of appeal including remission
On a previous appeal the EAT remitted the issue of justification of disability related discrimination for reconsideration by the ET. After the EAT judgment but before the remitted hearing the HL gave judgment in Malcolm v London Borough of Lewisham [2008] IRLR 700. At the remitted hearing the Appellant Chief Constable contended that the ET should consider first whether the Chief Constable had treated the claimant less favourably than others for a reason relating to his disability before, if necessary, considering the issue of justification. The EAT held that the ET did not err in holding that it had no power to consider the issue of less favourable treatment as it was bound by the terms of the order on remission to consider only the issue of justification. Aparau v Iceland Frozen Foods PLC (No 2) [2000] IRLR 196 applied. If this were a case of issue estoppel the relevant facts did not fall within the exception referred to in Arnold v National Westminster Bank PLC [1991] 2 AC 93 relied on by the Chief Constable. Further, the ET did not err in refusing to consider the issue of less favourable treatment at the remitted hearing if and insofar as it relied on the possibility that it may have wished to hear additional evidence if it were to consider that new issue.
Understandably on the then state of authority, until the judgment in Malcolm, the Chief Constable had not asserted that the claimant’s treatment was not less favourable than others. This was not an issue in the ET3, no such issue was identified at a CMC or raised at the liability hearing. No application was made to amend the original Notice of Appeal or the terms of the Order on remission from the EAT. Employment Tribunals are creatures of statute. The ET did not err in refusing to decide an issue which it was not empowered to consider (see Aparau para 24).
Citations:
[2009] UKEAT 0295 – 09 – 1711
Links:
Employment, Discrimination
Updated: 14 August 2022; Ref: scu.401691
