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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Butt v Children & Family Court Advisory & Support Service [2007] UKEAT 0362_07_3011 (30 November 2007) URL: https://www.bailii.org/uk/cases/UKEAT/2007/0362_07_3011.html Cite as: [2007] UKEAT 362_7_3011, [2007] UKEAT 0362_07_3011 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE PETER CLARK
MS B SWITZER
MR S YEBOAH
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR F McCOMBIE (of Counsel) Instructed by: Messrs Ashby Cohen Solicitors Ltd 18 Hanover Street London W1S 1 YN |
For the Respondent | MR B BURGHER (of Counsel) Instructed by: Messrs Beachcroft LLP Solicitors 100 Fetter Lane London EC4A 1BN |
SUMMARY
Unfair Dismissal: Automatically unfair reasons
Disability Discrimination: Direct disability discrimination
Practice And Procedure: Disposal of appeal including remission
S98A(1) ERA. Unreasonable delay in holding internal appeal hearing. Misapplication of S98A(2), reverse Polkey, to breach of statutory DDP. Disability related discrimination cf. direct discrimination. Case remitted to same ET (Sinclair-Roche).
HIS HONOUR JUDGE PETER CLARK
Background
Unfair dismissal
(1) Automatically unfair dismissal by reason of medical incapacity under section 98(4) of the ERA.
(2) Automatically unfair dismissal by reason of her having made protected disclosures contrary to section 103A.
(3) Automatically unfair dismissal contrary to section 98A(1).
The Tribunal rejected each of the three ways in which this part of her claim was put. Our focus is on the third strand of her case, section 98A(1) unfairness.
(a) the Tribunal materially misdirected themselves as to the law; and
(b) that on their factual findings as to the Respondent's delay it is unnecessary to remit the case back to the Tribunal for further findings.
In these circumstances we shall reverse the Tribunal's finding and declare that the Claimant's dismissal was automatically unfair under section 98A(1).
Disability discrimination
"(a) direct discrimination on the grounds of a person's disability which is not open to justification (section 3A5 and 4)
(b) disability related discrimination which is open to justification (sections 3A(1) and (3))
(c) failure to make reasonable adjustments (sections 4A, 3A(2) and 18B)."
"We bear in mind the provisions of section 3A(5) of the Act."
Disposal
(1) Was the Claimant's dismissal or action short of dismissal amounting to a detriment as pleaded at paragraph 29 of the Particulars of Complaint in the form ET1, for a reason which related to her disability? DDA section 3A1(a). Did it have a significant influence on the decision to dismiss, see Taylor v OCS Group Ltd [2006] IRLR 613, paragraphs 72 to 74, Smith LJ.
(2) In answering that question, the relevant comparator is that identified in s3A(1)(a), not s3A(5). That is a person to whom the disability related reason does not apply.
(3) If less favourable treatment is found under section 3A(1)(a), can the Respondent show that such treatment is justified under section 3A1(b)?