Employment Appeal Tribunal cases 18.03.2013 to 22.03.2013

Walker v Sita Information Networking Computing Ltd (disability discrimination – whether obesity can be classed as a disability under the Disability Discrimination Act 1995 – now the Equality Act 2010)
The Carphone Warehouse Ltd v Martin (disability discrimination and unfair dismissal – whether failure to end a suspension and pay the correct pay amounted to a PCP; whether the course of conduct amounted to a fundamental breach of contract entitling the Claimant to resign)
New Eltham Conservative Club v Hazel (unfair dismissal compensation – whether the Employment Tribunal erred in not considering whether the employee would have been dismissed in any event at some future date)
Esparon & Anor v Roucou (practice and procedure – whether it was just and equitable for an Employment Judge to refuse an application for review of a Default Judgment)

Walker v Sita Information Networking Computing Ltd

The Claimant weighed 21-stone and suffered from myriad symptoms which affected his health (including XYZ). The Employment Tribunal found that obesity itself could not constitute a disability and that there was no apparent physical or mental cause for his functional overlay – his disability discrimination claim must therefore fail.

The Claimant appealed to the Employment Appeal Tribunal on this point. The Employment Appeal Tribunal found in favour of the Claimant and allowed the appeal for the following reasons:

The Claimant had suffered from both physical and mental impairments on the evidence
Obesity does not render a person disabled in itself per se but it may make it more likely that the person suffers from an impairment which could be deemed to be a disability

The Carphone Warehouse Ltd v Martin

The Claimant had borderline personality disorder (a disability). The Claimant entered bankruptcy in X and was suspended from his employment as a result on 6 November 2009 due to potential problems with the FSA as a result of the bankruptcy. A course of conduct followed by the Respondent including failing to pay the Claimant properly in March 2010 and July 2010; a delay in dealing with the suspension (which had not been concluded by the end of October 2012); and threatening the Claimant with further disciplinary action. The Claimant emailed the Respondent on 31 October to complain about these issues and to submit notice of his resignation. The Claimant subsequently submitted claims for direct disability discrimination, indirect disability discrimination and constructive unfair dismissal. The direct disability discrimination claim was rejected by the Tribunal but the other two claims were successful. The Respondent appealed against the latter two findings and the Claimant cross-appealed against the former.

The Employment Appeal Tribunal rejected the Respondent’s appeal against the constructive dismissal finding, deeming it to be a “classic” case of constructive dismissal through the Respondent’s conduct and that the findings of the Tribunal were consequently not perverse. The EAT overturned the Tribunal’s decision on indirect disability discrimination as the “PCP’s” that constituted indirect disability discrimination (the failure to deal with the suspension and the failure to pay the Claimant properly) could not be properly deemed to be a “practice”. The Claimant’s cross-appeal was rejected.

New Eltham Conservative Club v Hazel

The Claimants (a husband and wife) were employed in the bar by the New Eltham Conservative Club and were ostensibly dismissed for the reason of redundancy on 31 December 2009. They objected to this reason and made a claim for unfair dismissal in the Employment Tribunal. The Tribunal found that the Claimant’s had been unfairly dismissed and that the reason for their dismissal was not redundancy as the work that they were previously undertaking was still continuing. The Tribunal went on at a remedies hearing to award the Claimants compensation reflecting their loss of earnings up until their prospective retirement date (from 31 December 2009 to 14 March 2013) as well as compensation for loss of the use of the flat they were entitled to use under their contract of employment. The Respondent appealed against the nature of the award, based on the argument that the Tribunal had failed to properly consider the guidelines in Software 2000 Ltd v Andrews regarding the cut-off date for future loss. The EAT found that the Tribunal had in fact failed to properly consider all of the relevant points in Software 2000 Ltd v Andrews and remitted the case back to the same Tribunal for consideration.

Esparon & Anor v Roucou

The Claimant in this case submitted an ET1 claim form to the Tribunal on 16 February 2010. The Respondent failed to lodge an ET3 form and a default judgment was entered on 4 August 2010, with the Claimant being awarded £223,616.58. The Respondent was notified of the Judgment at a later date and wrote to the Tribunal stating that the Judgment was the first that they had heard of the matter. They subsequently applied for a review of the Judgment but this was dismissed by the Tribunal as it was not just and equitable to review the decision. The Respondent appealed to the Employment Appeal Tribunal. The EAT decided that the decision of the Tribunal had been wrong and that the Tribunal had not effectively applied the guidelines in Pendragon v Copus and remitted the review application back to a different Employment Judge.