Case Law Update - Discrimination Cancelled out by Rehiring

The Employment Appeal Tribunal (EAT) has ruled that individuals who have been dismissed, but then later reinstated, can still claim that their dismissal amounted to a detriment under the Equality Act 2010.

If you want a quick summary of the case and the main takeaway points, you can skip ahead to our Too Long; Didn't Read section here.

Jakkhu v Network Rail Infrastructure Ltd

The law

An individual is victimised when they’re subjected to a detriment because they’ve done, or believed to have done, a ‘protected act’.

For example: An employee raises a complaint of discrimination, and feel they’re mistreated as a result. Then, they may also be able to claim victimisation.

It is possible for an employee to be dismissed but then reinstate or re-engaged. In such cases there is generally no dismissal for the purposes of an unfair dismissal claim.

This is because the dismissal will be considered to not have taken place.

Background to the case

In this case, the claimant was disabled and had previously taken time off work because of his condition.

When his role became at risk of redundancy, his employer offered him an alternative role. However, he refused it, on the basis that he would have had to relocate to the other end of the country.

As a result, the redundancy proceeded and he was dismissed.

However, his employer had agreed with its recognised trade union that no roles of the claimant’s grade would be made redundant that year.

Therefore, his dismissal was retracted. However, his employer failed to do so until his notice expired.

The claimant argued that the redundancy had been used as an excuse to get rid of him. He believed this as he’d previously raised a grievance that related to his disabilities.

Later, he brought numerous claims to the employment tribunal. These claims included disability discrimination and victimisation.

What did the employment tribunal say?

The tribunal viewed the case through ‘the prism of case law on dismissal’. This meant that, as the claimant had been reinstated, his potentially unfair dismissal could be held to not have taken place.

The employer had essentially ‘put right a bad decision’ by reinstating him. He gave back all of his employment rights. As a result, this dismissal couldn’t be considered a detriment under the Equality Act. And so, the claimant was not victimised.

The claimant appealed against this decision to the Employment Appeal Tribunal (EAT).

He argued that the tribunal had wrongfully applied the law in relation to unfair dismissal claims to his discrimination claim. Therefore, they’d failed to correctly determine if he had been victimised.

What did the Employment Appeal Tribunal (EAT) say?

The EAT upheld his appeal in relation to victimisation. They agreed that the tribunal had wrongfully applied the law of unfair dismissal to discrimination.

They explained that a dismissal can still amount to a detriment for the purposes of victimisation even if it is later withdrawn.

Detriment in discrimination law is a separate issue to that of unfair dismissal. The tribunal had determined that the vanishing of the unfair dismissal issue also meant the detriment had vanished. This wasn’t the case.

For example, such an action could have led to non-pecuniary loss. This could include injury to feelings, which could constitute a detriment.

Takeaway points

It can be difficult to establish what can be considered a detriment for the purposes of the Equality Act 2010.

Generally, employees will need to demonstrate that it was reasonable for them to believe they were disadvantaged at work due to bringing to light an issue of discrimination.

Even if you recognise that you’ve unfairly dismissed an employee and reinstate them, it doesn’t automatically remove the potential for a detriment claim.

Where unfair dismissal and discrimination do overlap, you must consider all elements. These two separate claims do not cancel each other out.

TL;DR

A disabled employee took time off work because of his condition. He was made redundant after being offered an alternative role in a different location, because he refused to relocate.

However, their company’s recognised trade union highlighted a previous agreement. The company had agreed not to make any roles of the employee’s grade redundant. His dismissal was retracted but not until his notice expired.

He brought claims of disability discrimination and victimisation to the employment tribunal.

The tribunal found that the dismissal couldn’t be considered a detriment due to his employer reinstating him. As a result, the employee wasn’t victimised.

The case was brought to the EAT. They found that dismissal can still amount to a detriment even after it’s withdrawn. Detriment in discrimination law is a separate issue to unfair dismissal.

Take care when unfair dismissal and discrimination overlap, as one doesn’t cancel out the other.

Expert support

Worried how this latest ruling might impact your business? Dealing with a difficult HR situation and not sure where to turn? Speak to a Croner expert today for support and guidance on 01455 858 132.