The claimant was employed by the respondent as a teacher as well as a youth worker.  He commenced a period of sick leave in June 2010, he never returned to his teaching position and was dismissed in 2015.  He had brought two previous claims before the ET based upon sex and race discrimination, victimisation and harassment. This claim to the ET related to disability discrimination, victimisation and unfair dismissal. These three will be taken in turn.

The disability argument related to his dyslexia which the ET found to be an impairment but that he did not suffer a substantial adverse effect on his ability to carry out the tasks of the job.   The appeal to the EAT was based upon the fact that the ET had failed to take the dyslexia in conjunction with the anxiety and stress that he was suffering.   The EAT expressly found that the ET did take into account the stress and anxiety with the dyslexia, notwithstanding the fact that the stress and anxiety was not examined separately.  The original ET rejected this disability discrimination claim, citing that occupational health and his GP had both found him fit for work and that there was no substantial effect upon his impairment.

The victimisation claim arose from the disciplinary process in which the respondent breached its own policy by failing to give the claimant a re-hearing at an appeal stage.   The argument raised by the claimant was that the ET focused on the substance of the decision rather than the procedural defects.   The EAT held that the ET had looked at both the substantive decision and the procedure together and agreed with their finding of no victimisation.

The reason there was no victimisation was because there was no protected act that had influenced the decision of the respondent.  Indeed, the ET in outlining the burden of proof examined causation, stating that there was nothing shown by the claimant to show a protected act that he could have been victimised for.  As a result, the appeal based upon victimisation was dismissed.

The third and final part of the appeal was based upon the ET's decision that the claimant was not unfairly dismissed.  The claim was based upon the failure to afford the claimant an appeal hearing.  The ET had examined this and found that overall the procedure was fair.   The EAT further held that even if the appeal had been held it would have made no difference and it fell within the band of reasonable responses as seen in Iceland Frozen Foods v Jones [1982] IRLR 439.  As a result, the three grounds of appeal raised by the claimant were dismissed.

Practical Lessons

This case demonstrates the range of issues that can arise from one factual matrix.  There are key issues that can be taken from this.  The decision not to have an appeal hearing would have been different in Northern Ireland, considering the Employment (NI) Order 2003 outlines a minimum statutory procedure requiring an appeal to be offered.  This case does demonstrate how even a breach of company policy will not lead to a successful claim as seen with the victimisation element, as it has to be linked to some disclosure or characteristic of the claimant.   This should be borne in mind when a failure to follow policy has been found and that it does not necessarily mean that any claim would be successful.
https://assets.publishing.service.gov.uk/media/5d6fe5aded915d09032e8c61/Mr_D_Herry_v_Dudley_Metropolitan_Borough_Council_UKEAT_0069_19_LA.pdf