The ET erred, having found that the Appellant’s claim of victimisation succeeded, in deciding that it was unnecessary to decide her claim of direct disability discrimination, based on the same detriment. In both claims, the accepted detriment was the respondent’s decision not to provide an employment reference. The ET concluded that the reason for this was because the Appellant had presented an ET claim. It did not go on to consider whether the detriment was also because she was disabled. The Respondent accepted that this was an error of law, but argued that it was not material, on the basis that the ET had made clear the reason why the reference had not been provided, which excluded any other reasons. Contrary to the Respondent’s argument, the ET had not found that there was only one reason for the detriment. Indeed, the ET had expressly stated that it had not considered the direct discrimination claim.
The second error was in how the ET considered whether to extend time for an out-of-time claim relating to alleged comments during an interview held on 27th April 2016. The ET had referred to no explanation having been given for why this claim had not been presented in time. In fact, the Appellant had applied to the ET on 22nd February 2017 to extend time, with an explanation and reasons. The ET had subsequently noted the time issue at a Preliminary Hearing on 23rd February 2017. The error is not that the ET ought to have extended time (which remains a matter for it). Instead, the ET erred in basing its refusal on the lack of any explanation being put forward, when, in fact, one had.
Citations:
[2022] EAT 70
Links:
Jurisdiction:
England and Wales
Employment, Discrimination
Updated: 09 June 2022; Ref: scu.677769