Brill v Interactive Business Communications Ltd

In an associative disability discrimination case, an amendment should not be permitted where the findings already made at the unfair dismissal hearing make the proposed claim incapable of succeeding. The relevant reason for dismissal must be identified, and it is insufficient that disability-related caring responsibilities merely contributed to absences if those absences were not the reason for dismissal. A possible discrimination claim must still be considered where the dismissal may have been caused by a discriminatory comparison or by disadvantage arising from caring responsibilities in the disciplinary process. But speculative possibilities unsupported by evidence do not justify remittal or further costs.

The claimant appealed to the Employment Appeal Tribunal against the refusal of an employment tribunal to permit amendment of his claim for unfair dismissal and related contractual sums. He sought to add a claim of associative disability discrimination concerning his disabled son, relying on the intervening decision in Coleman v Attridge [2008] IRLR 722.

The EAT held that the employment judge had wrongly treated the absence of a grievance under section 32 of the Employment Act 2002 as depriving the tribunal of jurisdiction over a discrimination claim relating to dismissal, and remitted the amendment application. The employer appealed, contending that the employment tribunal’s existing findings necessarily defeated any sustainable discrimination claim. The central issue was whether remittal would serve any useful purpose.

1. Appeal allowed. The application to amend the ET1 was refused. The employment tribunal’s findings of fact already determined were binding for the purpose of reconsidering amendment.

2. The absence of a grievance under section 32 of the Employment Act 2002 prevented a claim concerning failure to make working arrangements more flexible during employment, but did not remove the tribunal’s jurisdiction over a discrimination claim relating to dismissal.

3. The decisive finding was that the dismissal resulted from the claimant’s refusal to accept the contractual requirement to attend the office from 9.00 am to 6.00 pm, Monday to Friday. It was not caused by his absences. Caring responsibilities for a disabled child could therefore not link the dismissal to the child’s disability on the findings made.

4. A discrimination claim might theoretically arise if the employer would have dismissed an employee without a disabled child for the same contractual refusal, or if caring responsibilities caused disadvantage in the disciplinary process. Those possibilities were unsupported by evidence and were fanciful in the present case.

5. Evidence relevant to the proposed discrimination claim would also have been relevant to the fairness of the dismissal. There was consequently no prospect of success, and remittal would be an abuse of process and a waste of further costs.

• Court of Appeal (Civil Division): allowed the employer’s appeal and refused the application to amend the ET1.
• Employment Appeal Tribunal: allowed the claimant’s appeal from the employment tribunal’s refusal of amendment and remitted the application for reconsideration.
• Employment Tribunal: refused permission to amend the unfair dismissal claim to add associative disability discrimination.