Thread by @JasonBraier

1/ Niedzielska v Faccenda Foods: Reversal of strike out of LiP claim providing useful reinforcement of Cox v Adecco & an example of the EAT finding an EJ went against its own correct self-direction on the law (the 1st since DPP v Greenberg?).

bailii.org/uk/cases/UKEAT…
#ukemplaw

2/ N worked for FF as a production operative. She went off sick in July 2018 due to pain & swelling in her feet & was dismissed for medical incapability in April 2019 following an OH report suggesting she'd not be able to return in the following 6 months.

3/ N was a LiP. Polish is her 1st language. Her ET1 is, understandably, in imperfect English but the EAT held it clear that N was claiming unfair dismissal & discrimination arising from disability, & perhaps a failure to make reasonable adjustments claim.

4/ Whilst FF asserted lack of clarity about what the claims were, the EAT noted that they pleaded to a s.15 claim. The EAT wasn't especially impressed with a request for F&BP, noting it was a "little optimistic" to ask this of a LiP with limited English.

5/ The EAT criticised an EJ for acceding to the F&BP request, didn't get to grips with what N had actually claimed, & listed a strike out application before the F&BP had even been provided. C provided F&BP not clarifying the claim but noting inappropriateness of issued footwear.

6/ At the next PH, whilst FF's counsel had set out the core principles & case law clearly in a skeleton, the EJ only gave herself the briefest direction on the law on strike out.

7/ The EJ failed to identify a s.15 claim within the ET1, saying that N had only brought a FTMRA claim. HHJ Tayler considered this to be an error of law, & a failure to follow his approach in Cox v Adecco not to rely excessively on how a LiP explains their case at PH.

8/ Having identified a FTMRA claim, the EJ then erred in considering substantial disadvantage. The EJ had noted that all employees had difficulty with the footwear without considering the possibility N's arthritis might give her a non-trivially greater disadvantage.

9/ The EJ also erred in finding there couldn't be a duty to make reasonable adjustments as N wasn't able to return to work, without considering whether making the adjustment might speed up the possibility of return.

10/ On strike out of N's unfair dismissal claim, the EAT noted the EJ had given herself a correct self-direction about taking N's case at its highest, but had then not done so. This might be the 1st time since DPP v Greenberg that the EAT has gone down that route.

11/ In concluding the EJ erred in striking out the unfair dismissal claim, the EAT noted that somewhat extraordinarily the EJ had even considered and discounted Polkey reductions as going to fairness. The EJ had failed in numerous respects to take N's case at its highest.

12/ Thus the appeal was allowed & the claim revived and remitted to a different tribunal. A good win for Twitter chambers stalwart @MattJEJackson