Frettens’ Employment team has been at the cutting edge of employment case law this week. A decision by the Employment Appeal Tribunal (EAT), in which Paul Burton, Associate in the team, represented the Claimant, has been reported on the EAT’s website and is already being commented on in the legal press.
In Warner v Armfield Retail Leisure Limited the EAT had to decide whether the original employment tribunal was wrong to decide that the Claimant’s claims for unfair dismissal and disability discrimination should be dismissed. The tribunal had accepted the Claimant’s argument that, for the purposes of the unfair dismissal claim, the Claimant’s claim had been frustrated, which meant, in essence, that the employer could simply bring the employment to an end without any capability or dismissal procedure. If this decision was correct, then, it was argued by Paul and the Barrister he instructed, it weakened the statutory laws for unfair dismissal and disability discrimination, particularly when there was a duty to make reasonable adjustments for a disabled person.
The appeal was partially successful in that the EAT found the tribunal had not sufficiently considered whether the employer had treated the Claimant less favourably by dismissing him without any capability procedure. This will be sent back to the tribunal to decide. However, on the larger issue of whether the doctrine of frustration can be applied to end a disabled employee’s contract of employment, the EAT felt, despite having great sympathy for the Claimant, that they were bound to follow an earlier Court of Appeal case (since the Court of Appeal is a higher court) and dismissed the appeal. Since this latter point is an important one that has divided employment law experts for some time, the Claimant, Paul and their Barrister are currently considering whether to appeal to the Court of Appeal itself.
For a free initial meeting please call 01202 499255 and Kate or Paul will be happy to discuss any questions you may have.
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