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Disability Discrimination: Can a "vanishing dismissal" amount to a detriment?

21 November 2019
In the case of Jakkhu v Network Rail the Employment Appeal Tribunal (“EAT”) considered the question of whether a dismissal can amount to a detriment, even if it is subsequently retracted.

Background

The Claimant was at risk of redundancy based on a genuine reorganisation by the Respondent. The Claimant had a history of sickness absences relating to his disability and whilst on sick leave, attended a redundancy notice meeting. The Claimant confirmed that he would rather take redundancy than be considered for an alternative role at a different location. He was served with notice of redundancy, which was to take effect on 24 September 2014, and the Claimant remained on sick leave until this time.

After the dismissal of the Claimant, it came to the Respondent's attention that by serving the notice of redundancy, it had breached a trade union agreement that no compulsory redundancies would take place until 31 December 2014. The Respondent accordingly informed the Claimant that it was extending the notice period until after this date. The redundancy notice was then later retracted, and the Claimant returned to an alternative role. Following a series of events, the Claimant subsequently brought claims in the Employment Tribunal for direct disability discrimination, unfavourable treatment arising in consequence of disability, and victimisation.

The Decision 

The Employment Tribunal had initially treated the dismissal as a 'vanishing dismissal' on the basis that it had been extinguished by the Claimant's reinstatement. It was held that there had not been any less favourable treatment, nor were they able to see any difference in treatment that was due to the Claimant’s disability. 

However, when considering this decision, the EAT held that that there had been a failure to properly consider what the actual detriment was. The EAT considered that the Tribunal had erroneously viewed the circumstances through the prism of the case law on 'dismissal', as opposed to considering whether the act of dismissal itself could establish a detriment. 

It was decided that irrespective of whether the dismissal was subsequently withdrawn, the act of dismissal itself gave rise to a detriment for the purposes of section 13 (direct discrimination) and section 15 (discrimination arising in consequence of disability) of the Equality Act 2010 ("EqA"). 

Comment

Despite subsequent reinstatement, which would often render a dismissal a 'vanishing dismissal', this case makes it clear that the act of dismissal itself can establish a detriment for the purposes of disability discrimination. This was found to be irrespective of whether any pecuniary loss had been caused to the Claimant, and the fact that dismissal had later been withdrawn. It is clear that the Employment Tribunal is required to adopt a broad approach to its consideration of what constitutes a detriment and engaging with this issue to ensure section 136 EqA relating to burden of proof is properly applied in disability discrimination cases.

Authored by Rosalind McArdle and Joanne Frew.

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