Jennifer Andrews v Bryson Charitable Group [2023] NICA 26
For the full judgment click HERE
 

The litigant in person was employed by the Respondent as a Senior HR officer and Interim Assistant Director to cover a period of maternity leave under a fixed-term contract.
 

The Claimant’s case was that despite invoking the WhistleBlower Policy and Procedure she was not protected or fairly treated through the Managing Grievance Process.

The tribunal found that although she had raised public interest disclosures she had failed to establish a prima facie case of detriment or less favourable treatment and that as a result there was no onus for the Respondent to provide an explanation.

The claimant appealed the decision on the basis that she did not receive a fair hearing given that her request for a Mckenzie Friend was denied by the tribunal and that the attendance of law students had turned the hearing into a “spectator event” for their benefit. She also raised issues with the bundles, not being permitted to question the Respondent and stated that the Tribunal was weighted towards the Respondent, which she found “grossly intimidating” and directly “impacted [her] ability to deliver key arguments.”

The Court of Appeal allowed the appeal. The case was remitted back to the Tribunal for rehearing. 

F Kaiser v Khans Solicitors 3205000/2021
For the full judgment click HERE

The Claimant succeeded in her claim for unfair dismissal, disability discrimination and harassment on the basis of sex. The tribunal found that the paralegal was dismissed after repeatedly asking for unpaid wages because the law firm did not want to employ somebody who was likely to be off sick again. The Claimant who is a Muslim and wore a headscarf to work was also told by a male colleague that she would be more attractive to men if she did not wear it .The tribunal found this to be harassment related to sex. Whilst the claimant had never formerly described herself as disabled to her employer. The tribunal found that the Respondent had constructive knowledge that she was a disabled person under the Equality Act. The tribunal found that the Claimant had been directly discriminated against by not providing her with training because she was “always off sick”, and did not make reasonable adjustments, including that of her desk set up. Remedy is to be decided separately. 

Mrs L Lyddall v The Wooldridge Partnership Limited 3314738/2021
To read the remedy decision click HERE
 

The Claimant was sacked and dismissed without warning on the grounds of capability after returning to work following treatment for breast cancer.  The Claimant had only started working at the company two months before she was diagnosed and took sick leave. The Respondent had identified issues with her performance but did not raise them for fear of adding to her stress levels. She received only positive reinforcement throughout and was therefore shocked when the issue was raised following her return. The £32.3k award included £18.5k for injury to feelings relating to disability discrimination.

Boese v Asda Stores Ltd [2023] EAT 49
For the full judgment click HERE
 

The Claimant was a warehouse operative disabled by a degenerative back condition. Disability was accepted but the Claimant’s dismissal on capability grounds followed a period of over one year of absence. The Claimant raised a claim of direct discrimination. Following the failed claim an Appeal was grounded on the basis that the ET had erred in its construction of the hypothetical comparator. The  Claimant’s argument was that the so-called “non-disabled” comparator would also be disabled if the absence and circumstances were the same as that of the Claimant and was therefore not the correct comparator. The EAT held at [25] that the IT had not erred in its construction and that if it had adopted the approach urged by the Claimant “it would have failed to take into account the relevant circumstances in the case…and would have failed to impute those relevant circumstances to the hypothetical comparator.”

The Claimants brought a claim for indirect discrimination against the Respondent that the PCP of applying a lower minimum level of pay to outsourced workers compared to those who were directly employed had a disproportionate impact on those from BAME backgrounds. The tribunal found in favour of the Claimants but the decision was overturned by the EAT when it found the ET had narrowed the pool when it should have compaired employed staff with all outsourced workers not just those on specific contracts.

EAT found that the ET erred in holding that the respondent subjected the claimant to direct race discrimination in respect of the “number of opportunities it gave him to pass examinations” compared to Indian nationals or, alternatively, indirect race discrimination by offering only 2 sittings of its examinations per annum, while granting exemptions to equivalent examinations set by the Indian Actuarial Institute. 

The Group of 11 drivers had all been dismissed without notice for making unscheduled and undocumented deliveries of company products. The drivers stated that such deliveries occured when shutting kegs between various pubs as part of their customer service of returning replacement kegs or redistributing stock. No products were unaccounted for, and customers were not left out of pocket. The WRC found that the so-called practice of “swaps” was not included in the Respondent’s disciplinary procedure and was still not included three years after the drivers had been dismissed. It therefore held that this practice had taken place for a prolonged period, was ongoing, and was not gross misconduct. 

For the Irish Times Report click HERE
For the full decision click HERE

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