Appeals matter too

When challenging a dismissal in a unfair dismissal context then the employer’s handling of any appeal will be part and parcel of the consideration of whether the dismissal was fair or unfair. If an employer makes a complete pig’s ear of an appeal then even if the original decision was fair the overall process will be deemed unfair; alternatively, if a dismissal decision is unfair but an appeal process is done properly and remedies the errors then an unfair dismissal can be made fair. In some cases an appeal can even make an earlier decision to dismiss vanish.

However, where a dismissal decision is also said to discriminatory under the Equality Act 2010 then different considerations can apply and the extent to which a appeal is ‘part and parcel’ of the earlier decision which is being appealed if more difficult.

This is shown clearly in the recent decision of Stott v Ralli Ltd (2021). The issue in the case is relatively straightforward but it is a useful case to see how care to be particular about the decisions being complained about in any discrimination claims is important.

The key issue in this case was whether a tribunal made an error in deciding whether a dismissal was discriminatory and, in particular, whether an employer knew an employee was a disabled person, only considered information the employer held at the time of the dismissal rather than at a later date during consideration of an appeal/grievance about the events that gave rise to the grievance/dismissal.

In what is a harsh decision the EAT found that the claimant’s allegation of disability discrimination in dismissal failed because at the time of dismissal there was no knowledge of disability and the appeal/grievance was distinct from the dismissal. The EAT emphasised that had the claimant wanted the tribunal to consider events after a dismissal then the claim needed to be precise that it was saying that the appeal was also discriminatory.

This decision drives a wedge between rights to have a complaint heard in unfair and discriminatory dismissal contexts. In my view it is simply unrealistic and undermines the overriding objective to expect a claimant, especially a litigant in person, to appreciate the technical differences in complaining about a discriminatory dismissal and discriminatory post-dismissal appeal process. Where there is an appeal of some sort a claimant saying there dismissal was discriminatory will be intending to cite both the conduct of the dismissal and appeal without the more arbitrary distinctions the EAT imposes.

Stott is not new law but the decision after the more helpful rapproachement of discrimination law into the ‘part and parcel’ viewpoint seen in Baldeh is unfortunate.

There are though a few issues arising from Stott that it will be useful for claimant’s and their advisers to keep in mind.

First, one of the weaknesses of the part and parcel approach is the strictness of time limits – an employee has three months to lodge an ET. This is an issue of persistent irritation as a union representative because it means cases are frequently pushed to litigation when there are still chances of resolving through internal processes, causing a hardening of positions, great expense to claimants and respondents, and claims being pursued taking up public resources unnecessarily. However, that strictness also means frequently an ET is not submitted because an employee is still trying to resolve the issue and is ignorant of the time limits only putting their mind to the issue after the appeal has been concluded.

Faced with such a situation, many would be claimants find they are out of time to pursue a disability discrimination claim. However, what Stott shows is that a claimant may still have recourse to challenge a decision by saying that post-dismissal processes were fresh instances of discrimination. Had the claimant in Stott made such an argument it is feasible they would have been successful. So, if an employee has missed the boat because they did not think about a challenge until after an appeal had concluded then even if they are too late to challenge the dismissal (and i think it would also be worth still claiming it on the basis of it being a continuous act or being allowed to proceed out oif time) then the appeal decision will still be in time.

Second, unlike in unfair dismissal (where knowledge gained in an appeal) can be imputed retrospectively to the dismissal decision, Stott shows that this does not necessarily apply in a discrimination context when it comes to knowledge of disability. The learning point, which is in no way a new point, is if disability is relevant and an employer is not aware of this then this needs to be explicitly declared in any appeal in as much detail as possible explaining not just what the condition in but how this affects the employee at work. That declaration may not make a dismissal discriminatory (because an employer can still say they did not know at the time) but it prevents that same defence being used when a complaint of a discriminatory appeal is alleged.

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