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Mr R Jakkhu v Network Rail Infrastructure Ltd: [2023] EAT 77 (25 May 2023)
The claimant having succeeded (in part) on an earlier appeal, this matter was remitted to the employment
tribunal ("ET") to determine whether his dismissal on 24 September 2014 amounted to an act of direct
disability discrimination, unfavourable treatment because of something arising in consequence of disability,
or victimisation. At the first hearing before the ET, it had been held that the claimant had been given notice
of dismissal for what were genuine reasons related to redundancy (rejecting the claimant's case that this was
a sham). The claimant's dismissal had taken effect on 24 September 2014, when he was on sick leave, but it
was subsequently realised that this was in breach of an agreement reached with the relevant trade unions, to
the effect that there should be no compulsory redundancies prior to 31 December 2014. As a result, on 22
October 2014, the claimant was told that the dismissal would be withdrawn and his notice extended. Later, on
20 January 2015, the claimant's trade union representative requested that the notice be retracted; this was done,
and the claimant returned to work on 4 February 2015.
On the earlier appeal, it had been held that the ET had erred in its approach to the complaint relating to the 24
September 2014 dismissal, failing to properly address the question of detriment potentially arising from the
dismissal, notwithstanding the claimant's subsequent reinstatement. At the remitted hearing, the ET
considered the question of detriment in respect of the 24 September dismissal, the subsequent extension of the
notice on 22 October 2014, and the failure to retract the notice until 20 January 2015. It rejected the claimant's
claims in each respect. The claimant appealed.
Held: dismissing the appeal
The remission to the ET had been limited to the claim advanced in respect of the dismissal of 24 September
2014; although the ET was entitled to see that act in the broader context of subsequent events, to the extent
that it purported to determine wider allegations of detriment arising from the extension of the claimant's notice
on 22 October 2014, or the failure to retract that notice before 20 January 2015, that was an error: those matters
were not relied on as detriments in the claimant's pleaded case and the order for remission had (necessarily)
been limited to the case as put in respect of the 24 September 2014 dismissal.
The ET had not, however, erred in its approach to the burden of proof, and it had reached decisions that were
open to it on the evidence and were adequately explained in its judgment. In particular, it had not erred in
failing to draw adverse inferences from the fact that the respondent had not called as a witness the human
resources adviser who had given the instruction that led to the extension of notice on 22 October 2014: the
claimant had not identified that individual as a putative discriminator and the respondent could not be criticised
for failing to address a case that had not been advanced against it.
Finally, even if it was assumed that the ET had erred in its conclusions on the merits, it had reached a decision
that had been open to it on the question whether it was just and equitable to extend time.
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