Although employers can retract a dismissal notice and reinstate an employee, the Employment Appeal Tribunal (EAT) has held in Jakkhu v Network Rail Infrastructure Ltd that even if it is reversed, the dismissal can still give rise to a detriment under the Equality Act. 

Basic facts

Mr Jakkhu, who worked in a band five role as a Support Analyst, was served with notice of redundancy, due to take effect on 24 September 2014. However, as this turned out to be in breach of a national union agreement that there would be no compulsory redundancies of staff in bands five to eight in 2014, the company extended his notice period to 31 January 2015.

In early January 2015, Mr Jakkhu returned to work after a long period of illness caused by ulcerative colitis, a condition that the company recognised as a disability under the Equality Act. At that point, he confirmed that he did not want to accept redundancy and his notice of redundancy was retracted.

In March 2015, he applied unsuccessfully for a permanent role as a senior IT Support Analyst. The following month he alleged that he had not got the job because of race and disability discrimination and victimisation. The company then provided him with feedback about why he was unsuccessful but did not treat his complaint as a grievance.

In July 2015, he lodged a number of tribunal complaints including direct disability discrimination because of something arising in consequence of his disability and victimisation. In particular, he argued that he had suffered a detriment as a result of being dismissed in September 2014.

Tribunal decision

The tribunal dismissed his claims on the basis that:

  • The dismissal had been “extinguished” by the subsequent reinstatement, and he had not suffered any financial loss as a result
  • Mr Jakkhu had not been offered a permanent role because he had failed to apply for any of the roles with similar job descriptions to his own
  • Although the company failed to treat his complaint as a grievance, it did not amount to an act of direct disability discrimination, but instead was the result of a lack of understanding of his concerns.

 

EAT decision

The EAT, however, disagreed with the first finding, holding that the tribunal had failed to consider whether “the act of dismissal” itself had been a detriment. This was a different question from whether or not the subsequent reinstatement had extinguished the dismissal. The error had arisen because the tribunal had viewed the question through the prism of the case law on dismissal, rather than the actual dismissal itself. In other words, it should have adopted a much broader approach when considering whether a detriment had been established.

This approach had also led the tribunal to find that Mr Jakkhu had not suffered any pecuniary loss. However, he had brought his claim under the Equality Act which allows for compensation to be awarded for nonpecuniary damages, including injury to feelings. The EAT concluded therefore that a dismissal - even if is subsequently withdrawn - can give rise to a detriment.

However, it rejected the other two grounds of appeal. With regard to Mr Jakkhu’s complaint that he had not been offered a permanent role, the EAT held that the tribunal had been entitled to find that the reason was because he had not applied for them. Finally, it held that the tribunal was also entitled to conclude that it was a genuine error on the part of HR not to have treated his complaint about not being offered the senior IT job as a grievance.

It remitted the first matter to the same tribunal for reconsideration.

Comment 

The tribunal incorrectly focused on the “prism of the case law on dismissal” and it did not consider if the act of dismissal was a detriment in itself. This case shows that a dismissal, even if it is withdrawn following an appeal, can still amount to a detriment, even if, as a result of the reinstatement, it is no longer possible to bring a claim for unfair dismissal.