Dismissal, reinstatement and detriment

Jakkhu v Network Rail Infrastructure Ltd

Where someone has been dismissed and then subsequently reinstated, this does not prevent them from subsequently bringing a detriment claim under the Equality Act.

Generally, there’s no dismissal for the purposes of an unfair dismissal claim if an employee is reinstated or re-engaged.

Background

Mr Jakkhu, who is disabled and had a history of disability-related sickness, was at risk of redundancy when his role relocated. He declined the offer of the new role (in Manchester; he worked in Milton Keynes) and an alternative role and received notice of redundancy. The employer later discovered that he’d been dismissed in breach of an agreement with its trade union. At this point, the employer should have retracted his notice, but due to an apparent error, failed to do so until after his notice expired. When it realised the error, he was reinstated pending further consultation, and subsequently his notice was retracted.

Mr Jakkhu alleged direct disability discrimination, unfavourable treatment arising in consequence of disability, and victimisation. He said that redundancy was a convenient excuse to get rid of him, especially when he was the only one made redundant. The tribunal viewed what had happened through ‘the prism of the case law on dismissal’ and held that reinstatement meant the dismissal vanished. Mr Jakkhu appealed, arguing that the tribunal had wrongly applied the law relating to so-called vanishing dismissals and had failed to consider whether his dismissal was a detriment.

EAT decision

The appeal was allowed.

The tribunal had applied the law of unfair dismissal to Mr Jakkhu’s discrimination claim. Where unfair dismissal is concerned, reinstatement preserves continuity and effectively cancels the termination. But the question of detriment in discrimination law is entirely separate. The tribunal should have considered whether the dismissal had caused a detriment, rather than only applying the principle that the dismissal had vanished upon Mr Jakkhu’s reinstatement. The failure to retract the termination at the correct time could have caused non-pecuniary loss, including injury to feelings, so could therefore constitute a detriment.

Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2019/0276_18_0208.html

Comment

This is a useful reminder to employers that even if a dismissal vanishes because of reinstatement, the dismissal itself can nonetheless be relied upon by the employee in a detriment claim under the equality legislation. The concept of ‘detriment’ is wide: it need not involve any physical or economic consequences. The employee merely needs to show that a reasonable employee would or might take the view that he or she had been disadvantaged in the circumstances in which they had to work. Where unfair dismissal and discrimination laws overlap, all elements must be considered and dealt with separately.