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Discrimination still an issue even where dismissal vanishes

Gateley Legal

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Issue

If an employee appeals against a decision to dismiss them and is successful in that the employer decides to reinstate them into their old post there can be no claim for unfair dismissal. The employment will continue as the dismissal will have vanished. However in the case of Jakkhu v Network Rail Infrastructure Ltd it was held that the fact the dismissal had vanished would not prevent the employee from bringing any other claim aside from unfair dismissal.

Facts

Mr Jakkhu was disabled and had a poor attendance record. He was made redundant following a reorganisation. However the employer later realised that it would breach a collective agreement to make a him compulsorily redundant. Mr Jakkhu agreed to stay and look for alternative roles. His notice of dismissal was retracted. When his applications for permanent posts were rejected though he brought a claim his now vanished ‘dismissal' amounted to disability discrimination.

Decision

It was held that the question of whether the act of dismissal had been a detriment arising from the disability had to be considered separately. It was not the same as determining whether or not a subsequent reinstatement had extinguished the dismissal.  It was relevant to ask “the reason why” the dismissal has been allowed to take effect despite the agreement with the trade unions.  It was possible his absences might have been the reason for the error which may have given grounds for the claim.

A key takeaway point

Providing an employee with a right of appeal against a decision to dismiss provides an opportunity for the employer to correct any flaws in the procedure that it has followed and where the appeal is upheld it will usually remove any risk of a claim for unfair dismissal. However this case is the first to establish that re-instatement following dismissal may not prevent a claim for discrimination proceeding if a link can be established between the dismissal decision and a protected characteristic.

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