1/ PG2C v Davis: A welcome return of the ET President to the EAT and a notable application of the recent weakening of the rule in Browne v Dunn on the need to allow witnesses to explain themselves before the ET finds dishonesty against them.
2/ D was employed as a business development director of a project & programme management company. His role involved extensive entertainment of clients & expectations of alcohol consumption. D was diagnosed with Type 1 diabetes prior to his dismissal.
3/ D brought a number of claims, but the ET found 2 in his favour (finding it unnecessary to rule on some), namely that his dismissal & R's directors' refusal to acknowledge his ill health were both direct disability discrimination (a s.15 claim was 1 of those not ruled on).
4/ The R's position had been that C's dismissal had been due to performance issues & it hadn't known of D's disability at the material time. The ET found it knew after the start of performance review, but before an ad hoc board meeting at which the dismissal decision was taken.
5/ 1 important way the R's performance explanation for dismissal was undermined was that an email was subsequently altered to make it look as if it complained of D being responsible for an overcharging error, when the original email didn't make that allegation against him.
6/ The ET found the R's witnesses embellished their dissatisfaction with D's performance & took a collusive position to deny knowledge of D's ill-health via a diabetes diagnosis whereas in fact they knew about it. These inferences contributed to a shift of the burden of proof.
7/ The ET inferred that D's diabetes played a substantial role in the dismissal decision, owing in part to an assumption D would now be less capable of doing his job or less committed to it.
8/ Much of the appeal to the EAT (heard by the ET president) focused on perversity issues, on which a thread isn't necessary. However, there are some points of interest.
9/ The R argued that on shifting the burden of proof the ET failed to apply the last part of Igen v Wong - that the burden can be discharged if on the balance of probabilities the protected characteristic was in no sense whatsoever a ground for the treatment in question.
10/ The EAT made clear that all the ET had to do here was to consider whether the decision to dismiss was in no sense whatsoever because of D's disability. There was no requirement to weigh up how much performance predominated in the R's rationale for dismissal.
11/ Perhaps of greater interest was a ground of appeal that the ET erred in finding collusion between R's directors in denying knowledge of D's disability.
12/ R's counsel relied on the rule in Browne v Dunn about the need to give a witness an opportunity to explain a matter on which the tribunal is considering impeaching him for dishonesty (not in the sense of sending him for Senate trial to remove him as President of the USA!).
13/ D's counsel pointed, however, to the recent analysis & citation of case law in RAKIA v Azima & in particular the CA's citation of the PC in Chen v Ng, dampening down the strength of Browne v Dunn in the following way:
14/ The ET President ultimately found the rule in Browne v Dunn wasn't breached given how well advertised the issue of collusion was, time pressures on the ET, that XX on the point wouldn't have changed their denial of knowledge & the normality of drawing inferences in EqA claims
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1/ Thomas v FW Farnsworth: A useful reminder of the principles of Park Cakes v Shumba as to when terms of enhanced redundancy payment are implied into employment contracts by custom & practice.
2/ 27 workers at Pizza Factory were made redundant & paid statutory redundancy pay plus 10%. They claimed this was in breach of a contractual entitlement to enhanced redundancy pay of double the number of statutory weeks & no cap on a week's salary.
3/ Before the ET, the employees asserted their entitlement on 2 alternative bases: (i) a '1999 redundancy agreement' was incorporated & applied to all future redundancies; (ii) a term on enhanced redundancy pay was implied by custom & practice.
1/ Ibeziako v York Teaching Hospitals NHS: an EAT judgment on postponement of costs hearings, means to pay costs awards & the clearing of an ET direction that so very often confuses inexperienced parties.
2/ I brought an ET claim the subject of which doesn't matter, but which the ET found partially based on falsehoods. On the R's application a costs hearing was listed. I applied to postpone the hearing but this was refused.
3/ A couple of days before the costs hearing, R sent a skeleton, which I started to work on the following day. I attended the costs hearing & applied to postpone it because he'd had no sleep due to putting his skeleton together & because his anxiety levels were high.
1/ Opalkova v Acquire Care Ltd is a (short) must-read judgment on the application of the ET's powers to make a PTO (or costs order) under r.76(1)(b) (i.e. where the claim or response had no reasonable prospect of success).
2/ The facts of the case aren't important. What's important though is that O's ET1 contained 6 bases of claim, under 3 of which she succeeded. O applied for a PTO. The ET denied the application, in part because AC succeeded in responding to 3 of the 6 bases of claim.
3/ The relevant part of ET Rules r.76 is set out below. In considering whether the response had no reasonable prospect of success, the EJ considered the response as a whole & the circumstances in the round. HHJ Tayler held this to be in error.
1/ Gwynedd Council v Barratt & Hughes: CA clarifies that the lack of a right to appeal isn't determinative (or determinative save exceptionally) of a redundancy unfair dismissal claim, but merely one issue among many when considering fairness.
2/ B&H were employed as secondary school PE teachers. Their school closed, as did all primary schools in the area, to be replaced with a super school, providing education all the way through primary & secondary levels. On closure, B&H's contracts terminated.
3/ Staffing at the new school was by application process, with unsuccessful candidates being made redundant. B&H applied for the relevant posts in the new school but were unsuccessful. They weren't given a right to appeal & the school said it'd have been futile.
1/ Amdocs Systems v Langton: an important warning to employers to pay close attention to the insured benefits they offer employees & a need to very carefully word entitlements intended to be limited to what the insurer from time to time covers. assets.publishing.service.gov.uk/media/6124becb…
2/ L joined AS's predecessor, which AS acquired. His job offer & contract included income payment protection in the following terms:
3/ On transfer, AS presented that the IPP scheme wouldn't be affected, & L signed a form confirming he wished to continue to participate in the scheme.
1/ Brightman v TIAA Ltd - EAT holds ET erred in considering medical evidence about B's condition post-dismissal when assessing the fairness of a capability dismissal & whether there'd been a failure to make reasonable adjustments. #ukemplaw
2/ B was an auditor with brittle asthma, a blood clotting problem & a slipped disc. These caused B to be absent from work. The absences grew in length & regularity. She was referred to OH & examined by a doctor who didn't have supplementary notes she'd provided.
3/ As a result, B didn't permit the release of the Dr's report until he'd seen her notes. This took about 4 months - the notes didn't change the Dr's opinion. The report said she was fit for work but would continue to require sickness absences of like magnitude to the last year.