Jason Braier Profile picture
Mar 16 โ€ข 11 tweets โ€ข 5 min read
๐Ÿงต Kaul v MoJ: A useful example of the EAT upholding a merits strike out - here of EqA claims brought by a circuit judge in respect of the conduct of grievance procedures. It also contains important clarification re objectivity of detriments.
bit.ly/3yIJwDa
#ukemplaw
2/ K is a circuit judge. She raised 2 grievances, 1 against 3 fellow Judges, a 2nd against 3 members of HMCTS staff. The judicial grievance was dismissed by #ukemplaw legend Sir Patrick Elias. The staff complaint was dismissed as out of time under policy by 2 senior HMCTS execs.
3/ C's ET claims focused on the way her grievances were handled, & the HMCTS grievance conclusion that it was out of time. The bases of the ET complaints are set out below, but basically she asserts that procedural matters & decisions were EqA breaches on various grounds.
4/ The Rs applied to strike out K's claims. They substantially succeeded, with the EJ striking out all save the 4th basis of claim, namelyHMCTS subjected her to victimisation, indirect discrim, FTMRA & discrim arising from disability by not considering her grievance on the merits
5/ The EAT dealt with the struck out claims issue by issue. 1st was K's complaint re the time the grievance took. The EJ found the length of time not a detriment. K argued it's possible for a claimant to reasonably consider it a detriment when a grievance took 8 months.
6/ Swift J disagreed, noting from Shamoon that what amounts to a detriment for a victimisation claim is a wholly objective exercise, & that to the extent that the EAT decision in Warburton v Northants Police suggests otherwise it cannot stand.
7/ When K raised the possibility on appeal of unlawful motivation in the delay in the grievance process, Swift J noted it formed no part of K's pleaded case, & that in taking K's case at its highest, an EJ need not speculate on a case K might have advanced but hadn't.
8/ In general terms, the EAT noted a merits strike out isn't limited to claims that can't succeed as a matter of law, but also on the facts. Whilst there should be caution, it's sometimes clear already that there's no substance to factual assertions or inferences.
9/ Applying those tests, the EAT held EJ Snelson entitled to assess the facts on timing of the grievance (on which the parties were not in dispute) and to reach conclusions on whether the prospects threshold was met.
10/ The weakness of K's claims is exemplified by her assertion it was victimisation, indirect discrim, discrim arising & FTMRA to write to K pointing out her grievance might be out of time under HMCTS policy & asking her to justify why it shouldn't be treated as such.
11/ It will come as little surprise that EJ Snelson held this unsustainable & unmeritorious claims reliant on a perfectly normal and understandable letter. The EAT took the same view, & could find nothing detrimental in it, nor any prematurity in the EJ's findings about it.

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More from @JasonBraier

Mar 17
๐ŸงตEdward v Tavistock & Portman: EAT clarifies the approach to reductions for failure to mitigate loss, in upholding an appeal against ET 50% reduction in compensation for failure to mitigate. The judgment deals with both burden & whether a % reduction can apply.
#ukemplaw
2/ C worked for the NHS as a band 5 data officer. He was downgraded to band 4 & dismissed on grounds of there being no band 4 vacancies. An ET found the failure to redeploy was victimisation for having made allegations of discrimination. The matter then went to a remedy hearing.
3/ C was out of work for 2.5 years before getting an 8 month fixed term contract. For the 2.5 year period, the ET found that C didn't apply for Band 4 roles, there came a point when he should have, & reduced compensation of past loss by 50% to reflect the chance of getting one.
Read 15 tweets
Mar 17
๐ŸงตMinnoch v Interserve FM: Another unless order appeal - this is an HHJ Tayler special, with a run down of the case law & a paragraph neatly summarising the principles. Worth a prime place in your unless order case law folder.
bit.ly/3n1bk3f
#ukemplaw
2/ This case involved a multiple claimant claim brought by 37 claimants re the withholding of pay for days on strike. At a PH, EJ Burns (unusually) ordered sequential disclosure with the claimants going first, & a schedule of loss for each claimant. The wording is important: Image
3/ The Cs failed to comply & the R applied for strike out or an unless order. EJ Burns made the unless order that very same day. It cross-referred to the 1st order & also (highly unusually) asked the Rs to report to the ET the names of those struck out for not complying. Image
Read 16 tweets
Feb 7
๐ŸงตScheldebouw v Evanson: EAT follows Barnetson v Framlington Group in holding w/p privilege operates only if at the time of the negotiations the parties contemplated might reasonably have contemplated litigation if they couldn't agree.
assets.publishing.service.gov.uk/media/63e20de3โ€ฆ
#ukemplaw
2/ E was soon due to potentially to retire. At a meeting this possibility was discussed. Those discussions included agreeing on outstanding holiday entitlement. S made an offer in amicable discussions. It was rejected & E made a counter offer at a later date.
3/ E sought to refer to all of this in his Grounds of Claim. The question of whether it should be redacted as privileged was dealt with at a PH. E had accepted reference to the counteroffer (in green) should be redacted. An EJ agreed with E the remainder (blue) could be included. Image
Read 10 tweets
Feb 7
1/ Jaleel v Southend Uni Hospital: EAT provides useful reminder of how the shifting of the burden of proof operates under s.136 EqA both for direct discrimination claims & for harassment claims.
assets.publishing.service.gov.uk/media/63e12e0dโ€ฆ

#ukemplaw
2/ The case concerns a consultant who was also Director of Medical Education, went sick, raised a grievance against her line manager, refused to return to the DME role until the grievance was heard, & wasn't happy the manager was on the panel when she applied for a new DME term.
3/ The point of use in this decision is the EAT's consideration of the shift of the burden of proof under s.136 EqA, paras 34-41.
Read 6 tweets
Nov 1, 2022
1/ Morgan v Bucks CC: EAT upholds ET finding objective justification in dismissing an autistic social worker for handing out gifts to a foster child (against policy) where her disab made it more likely she'd repeat the offence, with consequential safeguarding concerns. #ukemplaw
2/ M was a senior social worker. Bucks CC policy precluded social workers handing child clients gifts save with senior manager permission. M breached that rule, as well as writing inappropriate reports about the foster carers (setting out her personal views on their actions).
3/ M was (among other impairments) autistic. In part she blamed her autism for her actions, though declined an OH assessment to look into this. In deciding to dismiss her, the dismissing officer was concerned she didn't accept fault & would repeat the breach.
Read 11 tweets
Oct 24, 2022
1/ Bathgate v Technip UK: ๐—” ๐—ฟ๐—ฒ๐—ฎ๐—น ๐—ฐ๐—ฎ๐˜ ๐—ฎ๐—บ๐—ผ๐—ป๐—ด ๐˜๐—ต๐—ฒ ๐—ฝ๐—ถ๐—ด๐—ฒ๐—ผ๐—ป๐˜€ ๐—ท๐˜‚๐—ฑ๐—ด๐—บ๐—ฒ๐—ป๐˜: EAT holds a settlement agreement can't settle EqA claims which haven't yet arisen, but is restricted to complaints known to the parties at the time of settling.

#ukemplaw
2/ B was a chief officer on a number of vessels. He accepted voluntary redundancy on an enhanced basis & signed a settlement agreement including the following term covering the claims settled:
3/ The enhanced redundancy included an additional payment, but subsequent to B signing & terminating his employment the terms were set such that it was only due to those under aged 61. B sought to bring an age discrimination claim as a result.
Read 16 tweets

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