Dismissal can amount to a detriment

The recent case of Jakkhu v Network Rail Infrastructure Limited 2019 shows that a dismissal can be classed as a detriment, even if the claimant has returned to work.

The Claimant had a history of sickness absence for both disability and non-disability related issues. In 2014 the Respondent reorganised their workforce and the Claimant was told that his role was being relocated to Manchester from Milton Keynes, where he commuted from his home in London. The Claimant declined the role and an alternate role in London and received notice of redundancy. However, it was later found that the Claimant had been dismissed contrary to a national agreement reached with trade unions in 2014 and was he was subsequently reinstated. The Respondent retracted the notice of redundancy and the Claimant returned to work. 

In 2015 the Claimant applied for a senior role but was unsuccessful. He brought claims for disability discrimination under sections 13 and 15 of the Equality Act 2010 ("EA") and victimisation in respect of the decision to dismiss him in 2014 and for not being offered a permanent role. He also stated that his complaint regarding the senior role was not treated as a grievance. The Respondent provided evidence that the recruiter had not been aware of the Claimant's disability or absence record and had based their decision on the Claimant being the least qualified for the role. They stated that they had offered several roles to the Claimant which had been declined. The ET agreed and dismissed the Claimant's discrimination and victimisation claims.

The Claimant appealed on the grounds that:

1. The ET had merely considered the vanishing dismissal case law (as per the decision in London Probation Board v Kirkpatrick 2005) and had failed to consider whether the dismissal was a detriment under s.39(2) EA. 
2. The Claimant was not made aware of a suitable permanent role and was not selected for the senior role. 
3. The ET had not correctly applied the burden of proof.

The Employment Appeal Tribunal upheld the appeal at 1) above, stating that the ET should have considered whether the dismissal had caused a detriment, rather than only applying the principle that the dismissal had vanished upon the Claimant's reinstatement. This issue was remitted to the ET and the other two grounds for appeal were rejected.

This case highlights the fact that where unfair dismissal and discrimination laws overlap, all elements must be considered and dealt with separately. In this case, the need to consider whether the dismissal had caused a detriment under discrimination law was paramount to the proper determination of the case, even if the vanishing principle did apply under unfair dismissal law.