Policy News Journal - 2014-15

both P and W for the DSM role and decided that P was better qualified for the new role, and offered him the position. On 8 January 2013, W was given three months’ notice of redundancy and was dismissed as redundant in April 2013. W brought a claim for unfair dismissal, alleging that the DSM role was a suitable available vacancy, which the Council was obliged to offer her under Reg. 10. W also brought a claim for discrimination. The ET upheld both claims, deciding that, where there is a suitable available vacancy, it must be offered to the employee on maternity leave. The Council's failure to do this meant that W's subsequent dismissal was automatically unfair and an act of direct pregnancy and maternity discrimination. The Council appealed on both grounds, arguing that W's right under Reg. 10 had not been triggered until a decision had been made with regards to who would be a more suitable candidate for the DSM role. Essentially, W could not have been deemed to have been made "redundant" for the purpose of Reg. 10, until the Council actually made the decision as to who would get the position. The EAT dismissed this appeal. Applying the Council's interpretation would undermine the protection offered by Reg. 10. The ET did not err in its conclusion that there was a redundancy when the Council decided that the two positions would be replaced by one. The EAT commented that a proportionate response to W's circumstances would have been for the Council to offer her another position if they preferred to give the DSM role to P. This was not the case however, with the only suitable available vacancy being the DSM role which, when offered to P, put the Council in breach of Reg. 10. The EAT did however uphold the Council's appeal in relation to the direct discrimination claim. The ET had not asked the reason why W had been treated the way she was. It followed that the ET was incorrect in assuming that a breach of Reg. 10, inherently equated to a form of discrimination. The EAT accepted that, whilst W had been treated unfavourably and this coincided with her being on a relevant period of maternity leave; this treatment was not necessarily "because of" her pregnancy or maternity leave and therefore fell short of the conditions required under EqA. The EAT has remitted this part of the claim back to the same ET for a decision.

Court rules on damages claims for psychiatric injury

27 November 2014

The Court of Appeal has ruled on the question of damages claims for psychiatric injury.

We are grateful to Daniel Barnett for this report on the Court of Appeal judgment in the case of Yapp v Foreign and Commonwealth Office (FCO).

Mr Yapp was appointed British High Commissioner in Belize. A year later he was withdrawn from the post and suspended, pending investigation of allegations of misconduct. He then received a writing warning. His suspension was lifted, but he developed a depressive illness and had to undergo heart surgery. He did not in fact receive any other appointment in the Foreign and Commonwealth Office until his retirement. He commenced proceedings against the FCO, complaining of the withdrawal of his post and the way the disciplinary process was conducted. He said the resulting stress had caused his depressive illness, which both constituted damage in itself, and led to pecuniary loss. The trial Judge found that the withdrawal of the claimant from his post was both a breach of contract and a breach of the duty of care which the FCO owed him at common law (but dismissed the claims in relation to the disciplinary process.

The FCO appealed against the finding of liability. It further contended that, even if it were in

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