DISABILITY DISCRIMINATION – Direct disability discrimination
DISABILITY DISCRIMINATION – Section 15
VICTIMISATION DISCRIMINATION
Disability discrimination – direct discrimination (section 13 Equality Act 2010 ) – discrimination because of something arising in consequences of disability (section 15 Equality Act 2010 ) – victimisation (section 27 Equality Act 2010 )
The Employment Tribunal (‘ET’) had rejected the Claimant’s various complaints of disability discrimination and victimisation. He appealed against its decision in respect of three issues: (1) his dismissal on 24 September 2014; (2) the failure to offer him a permanent role in February/March 2015; and (3) the Respondent’s failure to properly investigate his grievance of 20 April 2015.
Held : allowing the appeal in part
In rejecting the Claimant’s claims in respect of his dismissal of 24 September 2014, the ET had found that the dismissal had ‘vanished’ by reason of the Claimant’s subsequent reinstatement. By adopting this approach, however, the ET had failed to consider whether the act of dismissal (which was in breach of an agreement the Respondent had reached with the relevant trade unions) had been a detriment; this was not the same question as determining whether or not a subsequent reinstatement had extinguished the dismissal. Although the ET had then gone on to consider whether ‘the reason why’ the Claimant had been dismissed, it had focused on the background context to the original giving of notice (the redundancy situation) rather than on the actual question in issue – why the Respondent had allowed the dismissal to take effect notwithstanding its agreement with the trade unions. To the extent the ET engaged with the question why the Respondent had not sought to retract the notice of dismissal any earlier, (i) there was no indication that it had properly applied the burden of proof (section 136 Equality Act 2010), (ii) it had apparently assumed an explanation for the Respondent (failure of communication/ineptitude) without any indication of the evidential basis for this finding, and (iii) there nothing to suggest the ET had considered whether the Claimant’s absence (the ‘something’ arising from his disability) might have been the reason for the Respondent’s error. The Claimant’s appeal would be allowed on this issue, which would be remitted back to the same ET for reconsideration.
As for the Claimant’s complaint about the Respondent’s failure to offer him a permanent role, it was necessary to bear in mind the very general case that was before the ET; in particular, the Claimant had not specifically stated that he was relying on the vacancies identified by Mr Lindsell on or about February/March 2015. The evidence before the ET in relation to these positions included a meeting note with the Claimant where he had suggested that the jobs were only a match for his former role ‘on paper’. In the circumstances, the ET was entitled to find that the reason why these positions were not offered to the Claimant was because he had not put himself forward for them.
In relation to the Claimant’s grievance of 20 April 2015, the ET had found the Respondent’s response had been inadequate: the experienced, senior HR professional dealing with the Claimant’s complaints had failed to appreciate that this should have been treated as a grievance rather than merely a complaint about his non-selection for a higher-grade position. Having heard from the HR manager in question, however, the ET was satisfied that this was a genuine error and that she would have adopted the same approach in respect of any employee raising a complaint in this way regardless of disability, absence due to disability and/or any protected act. That was a conclusion open to the ET on the evidence and it was not open to the EAT to go behind that finding.
Citations:
[2019] UKEAT 0276 – 18 – 0208
Links:
Jurisdiction:
England and Wales
Employment
Updated: 14 October 2022; Ref: scu.646845
