Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
Background:
The claimant was offered a job by the respondent in 2019. This was based upon the belief that the claimant was employed by another company. However, the claimant had stopped working for that company in 2018 and had brought a Tribunal claim against it.
The claimant had negotiated a better offer on the assertion that he would be leaving a steady, secure role with the other company. Two days into his new role he was dismissed by the hiring manager having been informed that the employment with the other company had ended the previous year. The basis of the dismissal was that he had lied throughout the recruitment process. The claimant subsequently used the respondent’s internal process to appeal and asked the manager to pass the appeal email onto the appropriate department. The manager failed and it took several months for the appeal process to be completed.
The claimant brought a claim for victimisation citing that he suffered a detriment by bringing Tribunal proceedings against the other company. He further claimed that the managerial failure in processing his appeal was also an act of victimisation.
Outcome:
At first instance, the claim was dismissed and the claimant appealed to the EAT. The EAT held that the decision that the claimant was not victimised regarding his dismissal was correct. The Tribunal had made a finding about the substantive reason for dismissal and that reasoning was sufficient. The second issue about the internal appeal was more problematic. The Tribunal did not make a decision on why the manager had failed to action the appeal email. Whilst there other findings about the process there was nothing in relation to the manager’s conduct and why the manager would have acted in that way. Therefore, it was unknown to the EAT and to readers of the judgment as to whether the burden of proof had not shifted vis-à-vis the manager’s conduct or because there had been sufficient explanation for the conduct. As a result it was remitted to the Tribunal.
Practical Guidance for Employers:
The guidance here is more for the Tribunal and writing judgments. On the claims that have been brought the Tribunal must ensure that there is a positive determination of the legal and factual issues relevant to the claim. In this situation, the omission of any positive determination about the failure of the manager to process the appeal email has led to this case being lengthened by EAT decision and a remittal to the Tribunal.
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