Three French Hens

Thu, 08 Dec 2011

Richard Hignett tells us about three trends he has seen in 2011 
 
On reasonable adjustment discrimination… 
 
Post-Malcom, and notwithstanding the new provisions in the Equality Act 2010, there seems to be a trend on the part of those claiming disability protection to shoehorn as much as possible of what they are complaining about into the law of reasonable adjustment discrimination. And yet reasonable adjustment discrimination is highly technical and Claimants have to jump through a number of hoops in order to succeed in such claims. Not only that there are clear limits to the circumstances in which the law of adjustments will apply. A very useful decision, which those acting for Respondents should keep in their arsenal, is the decision of Mr Justice Langstaff in RBS v Ashton. UKEAT/0542/09. This decision really defines the scope of the law in this area: what it can be used for and what it cannot. The essential message is that the law of adjustments is about outcomes not processes. It cannot be used by Claimants seeking to argue that they should have been referred to Occupational Health sooner than they were, or that they should have been referred to a specialist, or that their should have been more consultation etc. 
 
On dismissals for gross misconduct…
 
When dismissing for misconduct, employers face a choice whether to dismiss summarily or dismiss on notice. That choice should in theory have no impact on the ability to successfully defend a claim of unfair dismissal. Why? Because section 98(4) ERA 1996 (the test for unfair dismissal) is concerned solely with the sufficiency of the employer’s reason. It contains no reference at all to whether dismissal is summary or on notice. Despite this I often feel that Tribunals consciously or otherwise raise the bar somewhat when an employer has dismissed an employee summarily for gross misconduct. This happened in a recent case I did which had to go to the EAT to be sorted out (Beachview School and Others v Griffin UKEAT/ 0162/11. The Tribunal confused the common law test for wrongful dismissal with the statutory test for unfair dismissal fatally in one sentence when it posed the following question: Was it reasonable for the Respondent to have dismissed the Claimant summarily? If you find yourself with a Tribunal going this route the best tonic I can recommend is what Lord Justice Mummery said about the differing nature of the two tests in London Ambulance v Small [2009] IRLR 563.
 
On strike out… 
 
There seem to be a plethora of cases at appellate level reminding us that Tribunal’s should not strike out discrimination cases at pre-hearings. Claimant lawyers do well to remind the Tribunal of the various ways in which the courts have described how rarely and exceptionally strike out should occur when resisting applications by Respondents. Phrases like ‘only if the claim is fanciful’ or if it is ‘hopeless’ and reminders that it should be done ‘only exceptionally’ capitalize on the general nervousness of Tribunal’s in striking out discrimination claims. That said - all these formulations are a gloss on the wording of the statute. If we drink from the pure waters of statute we are told that the Tribunal has the power to strike out claims which have ‘no reasonable prospect of success’. Do we need to have the meaning of these words further explained? 
 
Striking out all or part of a claim remains difficult but I sense a growing willingness on the part of Tribunal’s to do so despite the unhelpful maxims and phrases which spill down from the higher courts. Applying in the alternative for a deposit order is a good way of protecting your client’s position as to costs. 
 

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