EAT Practice and Procedure: Estoppel or Abuse of Process – DISABILITY DISCRIMINATION – Reasonable adjustments
DISABILITY DISCRIMINATION – Section 15
HARASSMENT
DISABILITY DISCRIMINATION – Exclusions/jurisdictions
UNFAIR DISMISSAL – Reasonableness of dismissal
Practice and procedure – estoppel; disability discrimination reasonable adjustments (sections 20 and 21 Equality Act 2010); discrimination arising from the consequences of disability (section 15 Equality Act); harassment (section 26 Equality Act); time limits (section 123 Equality Act); unfair dismissal (section 98(4) Employment Rights Act 1996)
The Claimant was a teacher who suffered from a disability sustained in the course of her employment. The Respondent had initially refused to recognise that the Claimant was entitled to be paid in full when on sick leave and this and other matters, including other allegations of disability discrimination, were the subject of earlier ET proceedings. The first ET proceedings were ultimately determined in the Claimant’s favour. Meanwhile, however, the Claimant had been subject to the Respondent’s capability procedures and was ultimately dismissed. The Claimant brought a further ET claim, pursuing various complaints of disability discrimination and unfair dismissal.
The ET held that all claims relating to matters prior to the lodgement of the first ET claim were an abuse of process (applying the principle laid down in Henderson v Henderson). Otherwise, it allowed that certain of the Claimant’s complaints of disability discrimination were made out and upheld her claim of unfair dismissal.
On the Respondent’s appeal and the Claimant’s cross-appeal.
Held: allowing the appeal in part and dismissing the cross-appeal.
The ET had failed to address the Respondent’s objection that the Henderson v Henderson principle applied to all matters that had taken place prior to the hearing of the first ET claim (not just the lodgement of the claim); either the ET had assumed that the principle only applied up to the date of the later claim (which would be wrong in law) or it had failed to address the point. Had it done so, it would have been bound to find that the matters that had occurred prior to the hearing of the first ET claim could and should also have been included within those proceedings. In the alternative, on the failure to pay the Claimant her full salary, this had been a matter raised in the first ET proceedings in any event and the Claimant was issue estopped from pursuing it in the second.
The ET had further erred in its approach to the tests to be applied under sections 15 (discrimination because of something arising from the consequences of disability) and 26 (harassment) of the Equality Act 2010. There was no indication that it had considered how the unfavourable treatment was ‘because of’ something arising from the consequences of the Claimant’s disability for the purposes of section 15 or as to how it had found that the unwanted conduct was ‘related to’ the relevant protected characteristic. Either it had failed to apply the correct test or it had failed to explain how it had done so.
The ET had also erred in its approach to time limits in respect of the reasonable adjustments claims, failing to treat the failure to make the adjustments in question as an omission and further failing to determine the date of that failure. Had it been necessary to determine the point, the ET’s conclusion on continuing act was also inadequately explained.
The ET had, however, reached a permissible view on the Claimant’s unfair dismissal claim and the appeal would be dismissed in this regard.
Citations:
[2016] UKEAT 0004 – 16 – 2212
Links:
Jurisdiction:
England and Wales
Employment
Updated: 29 January 2022; Ref: scu.573477
