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Does Reinstatement Extinguish Detriment in Discrimination Cases?

on Friday, 22 November 2019.

A discrimination claim against Network Rail leaves the ET and EAT divided over whether reversing an employee's dismissal extinguishes detriment in equality law.

Jakkhu v Network Rail

Mr Jakkhu was made redundant when his role was relocated. After giving notice of redundancy, the employer entered into a trade union agreement under which it agreed not to make employees of Mr Jakkhu's grade redundant during that calendar year. After entering into the union agreement, the employer should have retracted his notice, but due to an apparent error, failed to do so until after his notice expired. After realising its error, the employer reinstated the him pending further consultation, and subsequently retracted the notice entirely.

Mr Jakkhu brought claims of direct disability discrimination, unfavourable treatment arising from a disability and victimisation. Central to the claims was the argument that the retracted notice constituted a detriment in law. The ET dismissed the claims, holding that the reinstatement effectively cancelled the termination. The ET took account of the fact that Mr Jakkhu's continuity had been preserved, that he was paid throughout so suffered no financial loss, and also that he had been oblivious to the alleged detriment until after the event. He appealed to the EAT.

EAT Decision

The EAT upheld the Mr Jakkhu's appeal. It found that the ET had wrongly applied the law of unfair dismissal to the discrimination claim. Under unfair dismissal rules, reinstatement preserves continuity and effectively cancels the termination. However, the question of detriment in discrimination law is entirely separate. The failure to retract the termination at the correct time could have caused non-pecuniary loss, including injury to feelings, so could therefore constitute a detriment.

The ET should have considered why the employer did not retract notice immediately after entering into the union agreement. There is some suggestion that the reason for this was that Mr Jakkhu was on sick leave and so, due to employer ineptitude, was essentially forgotten during the notice period. The case has been remitted to the ET for consideration.

How Could This Impact Your Organisation?

This case demonstrates the importance of keeping track of HR and personnel issues, particularly during large scale restructures and/or where affected staff are on long term sick leave. There may be a tendency to consider a matter concluded after notice is given, particularly if the employee is not at work during the notice period. In order to mitigate the risk of claims, employees should be treated consistently for the duration of their employment, including their notice period.

Are you at risk of a discrimination claim because of your HR processes? Get in touch with Jessica Scott-Dye from our Employment Law team on 0117 314 5652, or complete the form below.

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