Jakkhu v Network Rail Infrastructure Ltd

A dismissal may amount to a detriment under the Equality Act 2010 even if the employer later reinstates the employee and restores continuity of employment. The tribunal must identify the actual complained-of act and determine why it occurred. It must not treat a later reinstatement as a complete answer to a discrimination claim.

Where facts could support an inference of discrimination, the tribunal must apply the burden of proof under section 136. In a section 15 claim, it must address whether disability-related absence was the reason for the relevant treatment, rather than merely explaining the background redundancy decision.

The claimant appealed from the dismissal by the Cambridge Employment Tribunal of claims for direct disability discrimination, discrimination arising from disability, and victimisation under the Equality Act 2010.

The appeal concerned three matters: the claimant’s redundancy dismissal on 24 September 2014, later reversed after it was found to breach a trade-union agreement; the alleged failure to offer permanent roles in 2015; and the inadequate handling of his April 2015 complaint as a grievance. The central issue was whether the Employment Tribunal had correctly identified the alleged detriments and applied the statutory burden of proof.

1. Appeal allowed in part. The appeal succeeded concerning the dismissal of 24 September 2014. It otherwise failed.

2. The Employment Tribunal erred by treating the later reinstatement as causing the dismissal to vanish for discrimination purposes. The claimant’s complaint was capable of being an act of detriment in its own right: the respondent had allowed his notice to take effect despite an agreement that there would be no compulsory redundancies in the relevant grades that year. A later restoration of employment and absence of financial loss did not conclusively answer that issue.

3. The relevant question was why the respondent failed to retract, or offer to retract, the notice before it took effect. The Employment Tribunal instead concentrated on the original redundancy situation. It did not adequately address whether the facts could shift the burden under section 136 of the Equality Act 2010, or whether there was cogent non-discriminatory evidence explaining the failure.

4. This omission was especially material to the section 15 claim. The claimant’s disability-related absence was the alleged “something” arising from disability. The tribunal had to decide whether that absence caused the failure to prevent the dismissal, not merely whether redundancy had caused the original notice.

5. The Employment Tribunal was entitled to reject the complaint about permanent roles. The pleaded complaint was general, the claimant had not particularised the identified vacancies, and the evidence permitted the finding that he had not put himself forward for roles allocated for him.

6. It was also entitled to reject the grievance-handling claims. Although the response was inadequate, it found on the evidence that the HR manager would have made the same error regardless of disability, disability-related absence, or any protected act. The EAT could not re-evaluate that factual finding.

7. The dismissal issue was remitted to the same Employment Tribunal, if practicable, for reconsideration under section 136. A Burns/Barke reference was inappropriate after a full appeal had been allowed.

• Employment Appeal Tribunal: Allowed the appeal concerning the 24 September 2014 dismissal and remitted that issue to the same Employment Tribunal. Dismissed the appeal on the permanent-role and grievance-handling issues.
• Employment Tribunal, Cambridge: Dismissed the claimant’s claims of direct disability discrimination, discrimination arising from disability, and victimisation under the Equality Act 2010.