Can A Dismissal Be Discriminatory, Even If Later Retracted?

Yes, held the Employment Appeal Tribunal in Jakkhu v Network Rail.

Jakkhu v Network Rail Infrastructure Ltd

Case background

Mr Jakkhu suffered from ulcerative colitis. He lived in London and commuted to work in Milton Keynes to perform his role of Support Analyst.

In 2014, Network Rail reorganised its business in a way which meant that that Mr Jakkhu’s role would need to be relocated to Manchester. Mr Jakkhu was therefore put at risk of redundancy. During a consultation meeting, he confirmed that moving to Manchester was not feasible for him and that he would prefer to take redundancy. He was therefore served with notice of redundancy to take effect some six months later in September 2014. At the time of the expiry of his notice period, Mr Jakkhu was off work on long term sickness absence.

After the dismissal, Network Rail became aware that they had made an error in respect of Mr Jakkhu’s notice period as a national agreement had been reached with the trade unions that no redundancies would take place in the role that Mr Jakkhu was in until the end of December 2014. Mr Jakkhu’s dismissal had, therefore, been in breach of that national agreement and so Network Rail informed him that they were extending his notice period to the end of January 2015.

Mr Jakkhu attended return to work meetings in January 2015 and confirmed that he wished to consider alternative roles as opposed to accepting redundancy. On 3 February 2015, Network Rail wrote to Mr Jakkhu and retracted his notice of redundancy, confirming that he would return to work and seek alternative employment instead. The Claimant returned the next day and began carrying out temporary project work.

In July 2015, Mr Jakkhu went off work and remained absent on sick leave thereafter.

Legal proceedings

He proceeded to bring a claim in the Employment Tribunal in which he alleged, amongst other things, that his dismissal in September 2014 was direct disability discrimination, discrimination arising in something of his disability, i.e. his ulcerative colitis and victimisation.

Decision

The Tribunal concluded that his dismissal had vanished as a result of his reinstatement and that the dismissal was due to his role being redundant and him not wishing to consider the alternative role in Manchester, as opposed to his disability, sickness absence or the fact he had raised an earlier grievance.

Mr Jakkhu appealed this decision and the Employment Appeal Tribunal disagreed and overturned the Employment Tribunal’s initial findings. They found that there was no obligation on Mr Jakkhu to demonstrate that his dismissal remained effective to establish that the failure of Network Rail to retract his notice when they should have done was a detriment.

Comment

It is unlawful for an employer to discriminate against one of its employees by subjecting the employee to any form of detriment. This case serves as a reminder that an employee only needs to show that a reasonable employee would or might take the view that he had been disadvantaged to establish that they have been subjected to a detriment; that detriment need not involve any physical or economic consequences, e.g. financial loss.

Employers should be wary that, although a reinstatement may prevent an employee from bringing an unfair dismissal claim, an employee may still be able to rely on that dismissal to say that it amounted to being a detriment and was therefore a form of discrimination.

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