Jakkhu v Network Rail Infrastructure Ltd UKEAT/0276/18/LA

Appeal against the ET’s judgment dismissing the Claimant’s various claims of disability discrimination and victimisation. Appeal allowed in part.

The Claimant, who has a disability, was dismissed by the Respondent, contrary to an agreement with the trade unions, and subsequently reinstated. When he returned to work, he remained at risk of redundancy and was aggrieved that he was not offered a permanent role. The Claimant brought proceedings in the ET, complaining that (1) his dismissal was an act of direct disability discrimination, it was unfavourable treatment because of his disability, or it was an act of victimisation, (2) the Respondent had failed to offer him a permanent role, and (3) the Respondent had failed to treat his concerns as a grievance. The ET dismissed the claims, finding that (1) the Claimant's reinstatement extinguished his dismissal, (2) the Claimant had been offered various permanent roles that he had declined, and (3) the Respondent had failed to treat the Claimant's concerns as a grievance, but this did not amount to an act of direct disability discrimination. The Claimant appealed, contending that (1) the ET erred by failing to see the dismissal itself as a detriment, and this undermined its further conclusions, (2) the ET's dismissal of his claims in relation to an alternative permanent role failed to properly engage with his case and its own primary findings of fact, and (3) the ET failed to properly apply the burden of proof and reached a decision which was not open to it on the evidence.

The EAT held, in respect of the first ground of appeal, that the ET erred in its approach to the Claimant's complaint of detriment in respect of his dismissal; but it dismissed the other grounds of appeal. Accordingly, the matter would be remitted to the same ET for reconsideration of whether the reason for the failure to retract the notice of dismissal (or offer to do so) was by reason of the Claimant's disability, or something arising from that disability, or because of his protected act.


Published: 20/11/2019 22:17

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