LORD WILSON: (with whom Lady Hale, Lord Hughes, Lady Black and Lord Lloyd-Jones agree) dismissed Pimlico’s appeal challenging worker status. The result of doing so was that the substantive claims of Mr Smith as a limb (b) worker could proceed to be heard in the tribunal.
The ET had found that the appeal had “vanished” by reason of the Claimant’s subsequent reinstatement. By adopting this approach the ET failed to consider whether the act of dismissal had been a detriment.
Whistleblowing. Fraud and illegality. Held: The obligation upon an ET on an interim relief application was necessarily to carry out a summary assessment of the material before it (applying the test laid down in Taplin v Shippam to determine whether the Claimant was likely to succeed in her claim.
Held: The Employment Tribunal erred in failing to identify any legal obligation, as opposed to guidance, of which the Claimant believed the Respondent to be in breach. Accordingly the finding that the Claimant had made a qualifying disclosure within the meaning of the Employment Rights Act 1996 (“ERA”) section 43B(1) and therefore a protected disclosure was set aside. The finding that the Claimant was subject to a detriment for making a protected disclosure is set aside. The Employment Tribunal also erred in applying the wrong test in considering the claim under ERA section 103A. They applied the test appropriate to a section 47B claim and not that for unfair dismissal. Claims remitted to a differently constituted Employment Tribunal for rehearing.
Estoppel or abuse of process. Held: Estoppel should yield to fairness if and when appropriate, as it was here: the COT3 did not, as the judge thought, bar complaints about the behaviour of the employer, but rather barred claims arising specifically out of those complaints. The Claimant could not fairly be stopped raising relevant evidence, subject to careful case management orders.
Held: If a wrong label is attached to a mental impairment a later re-labelling of that condition is not diagnosing a mental impairment for the first time using the benefit of hindsight, it is giving the same mental impairment a different name and, given that whether or not an employer knows or should have known there is a disability is essentially a question of fact (see Wilcox and Birmingham CAB Services Ltd [2011] Eq LR 810), the Employment Tribunal was entitled to find that the Cross Appellant employer had actual or constructive knowledge of the disability. Although the Employment Tribunal overstated the effect of the judgment in Project Management Institute v Latif [2007] IRLR 579 (contrary to what the Employment Tribunal tended to suggest, it does not place any evidential burden on a Claimant to do more than identify alleged reasonable adjustments) and whilst it is always better for an Employment Tribunal to deal specifically with each suggested adjustment that has been identified by a Claimant, particularly where a CMD has confirmed that those matters are in issue, the Employment Tribunal’s judgment addressed the issue of reasonable adjustments to a sufficient extent and the Appeal must be dismissed.
Bampoe v Tower Hamlets Primary Care Trust [2011]
Represented a senior NHS executive in a four weeks complex equality rights and race discrimination claim. The Respondent was represented by (then) Ingrid Simler QC (who later went on to become the President of the EAT).
Inferring discrimination and Burden of Proof.Held: Findings of race discrimination by the Employment Tribunal were set aside by the Employment Appeal Tribunal because (a) the acts which were said to be acts of race discrimination were not the ones of which complaint had been made, (b) the Tribunal did not identify the facts from which race discrimination could be inferred, (c) the Tribunal did not explain why race discrimination could be inferred from the facts which it found proved and (d) for other reasons.