Employment law
...ET first had to determine the actual date of termination
work, which allegedly occurred in August 2018, and according to them placed them at a disadvantage due to their disabilities. The claimants also argued that their concerns about the change had been ignored. The first claimant stated that he had been suffering from depression and anxiety from April 2018, but this had only come to light after the alleged act of discrimination. The second claimant put forward that she suffered from anxiety, depression, and post-traumatic stress disorder due to incidents that had occurred in her past. At a preliminary hearing, the ET assessed if both claimants could be considered as having a disability on the dates of the alleged discriminatory incident in August 2018. Crucially, the ET had no direct evidence of the claimants’ situations on that particular date and therefore had to focus on evidence from both before and after the incident. Ultimately, the ET held that both claimants were disabled. When considering the first claimant, the ET held that, on the evidence available to it, the employee had begun suffering from a qualifying impairment that met the definition outlined in the Equality Act 2010, and from this inferred that the person was still suffering from it by August of that year. Turning to the second claimant, the ET relied heavily on a testimonial from the first claimant and ultimately concluded that this claimant also met the legal definition on the date in question. This meant that both claimants could proceed with their claims of discrimination. The employer appealed, taking issue with how the ET had reached its decision. The employer’s main argument at the appeal was that it was not up to the ET to seek to rely on evidence from before or after the date of alleged discrimination in order to determine the situation on this
particular date. The EAT dismissed the appeal, outlining that although the ET had not focussed on evidence available on the date of the alleged discrimination, this did not on its own show a defect in the judgement. In this situation, the ET had needed to examine the period when the acts complained of had occurred; if there was evidence of impairment shortly after the date of the alleged incident, failure to focus specifically on this date was not, in itself, a defect. Looking at both claimants, the EAT was satisfied that the ET had fairly reached a conclusion and that the ET had also carefully considered all evidence and clearly demonstrated why they felt the testimony from the first claimant was reliable for the second. Avuru v Favermead Ltd & Nasser The EAT has assessed if a claim for redundancy pay was in time when considering conflicting evidence of the termination date. The claimant worked for the respondent as a carer for a period of ten years, caring for the sick mother-in-law of a director, Mrs Easton. Following the death of Mrs Easton in March 2017, the claimant’s work ceased; however, the respondents did not directly inform her that her employment was to end. This was despite the fact that she was offered no further work as a carer. Although the respondent would later argue that the claimant was sent a form P45, the latter disputed ever receiving it. What was certain was that the claimant stopped receiving any pay for her role as a carer in April 2017. In November 2017, a conversation was finally held between the claimant and the respondent
concerning her ongoing employment, with the respondent confirming that they were “finished with her”. In January 2019, the claimant brought to the ET claims surrounding this issue. The respondent countered this argument by stating that she had brought her claims out of time. Before it could assess whether the claimant had submitted her claim for unpaid redundancy pay in time, the ET first had to determine the actual date of termination. This threw up a number of issues; although the respondent argued that this date should be March 2017, following the death of Mrs Easton, the claimant asserted that this should actually be November 2017. The claimant alleged that she’d had a conversation with the respondent not long after the death of Mrs Easton, in which she had been told to take some rest for a few months. Her argument was that this led her to believe that her employment was to continue until she was finally told otherwise by the respondent in November 2017. Despite the fact that the respondent disputed this conversation ever taking place, and that the ET agreed that all evidence pointed to the termination date being in March 2017, it was found that the termination date was actually November 2017. This was because the claimant maintained subjective belief about her employment until this date. The ET went on to explain that regardless of the termination date being November 2017, the claim had still been brought out of time. Both the claimant and the respondent took issue with the ET’s ruling and appealed. The EAT agreed that the claim was out of time and therefore could not proceed. However, they were critical of the ET’s ruling. They held that as the ET had concluded that all evidence pointed towards the termination date being March 2017, their natural conclusion should have been to find this as the termination date. However, they seemed to have relied on evidence from the claimant that conflicted with the respondent. As the ET had not outlined why the claimant’s evidence was more reliable, their conclusion could not be upheld. n
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| Professional in Payroll, Pensions and Reward |
Issue 68 | March 2021
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