25 February 2015
Can an employment tribunal reduce victimisation compensation because the Claimant was unlikely to be appointed to a role?
Yes, held the EAT in Das v Ayrshire & Arran Health Board .
Daniel Barnett’s employment law bulletin summarises:
During his employment the Claimant (a doctor) had made a number of complaints about treatment directed towards him and towards patients. His employment ended in 2009. In 2012, the Respondent advertised for a post and the Claimant was the only applicant. In part because of the Claimant’s history, the Respondent decided to withdraw the vacancy and made no appointment. The tribunal held that the Respondent’s failure to interview the Claimant was because of the risk he would make a claim under the Equality Act 2010, which amounted to an act of victimisation.
However, it reduced compensation by 90%. He had performed badly in earlier interviews and had had a number of temporary roles: there were no guarantees he would get the job.
The EAT held that this decision was not perverse. There was sufficient material on which the employment tribunal could speculate about what would have happened had the Claimant been interviewed. A crucial finding was that the Respondent was prepared to appoint no one, rather than appoint someone they did not think suitable.
Employee could not claim constructive dismissal after 18 month delay
5 March 2015
This case is a useful reminder of the law on affirmation of contracts
Emplaw provides a summary of the case Mari v Reuters Ltd :
Ms Mari, a systems support analyst, was off sick from work with stress, anxiety and depression. She claimed that she had been placed under an unreasonable workload and bullying working conditions. During a lengthy period of sickness absence she accepted contractual sick pay until it expired after 39 weeks. She then resigned and claimed constructive unfair dismissal. The EAT upheld a tribunal’s decision that Ms Mari had affirmed the contract by accepting sick pay for such a prolonged period. It held that the tribunal was entitled to find on the facts that Ms Mari had not been too ill to resign. Applying the leading case on affirmation, WE Cox Toner (International) Ltd v Crook  IRLR 443, the EAT noted that the question whether or not the conduct of the innocent party amounts to an affirmation of the contract is a mixed question of fact and law and that the ET had properly directed itself on the law. This case is a useful reminder of the law on affirmation of contracts. Each case will turn on its own facts. Here, the employee waited for a very long time before resigning and, on the evidence, the tribunal was entitled to find that she could have resigned sooner.
Employment Appeal Tribunal - Type 2 Diabetes
27 March 2015
CIPP Policy News Journal
08/04/2015, Page 139 of 521
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