This week’s case roundup
Disability discrimination – who’s the correct comparator?
Cosgrove v Caesar & Howie, IDS Brief 698, EAT
Cosgrove was employed as a legal secretary from 1973 until March 1999. From
December 1997 she was absent from work due to depression and after a continuous
absence of one year was given 12 weeks’ notice of dismissal.
In the tribunal, Cosgrove unsuccessfully claimed unfair dismissal and
disability discrimination, arguing she had been treated less favourably for a
reason relating to her disability – namely her depression.
Cosgrove successfully appealed to the EAT. The tribunal had found there was
no evidence that C&H would have treated Cosgrove differently from a
hypothetical employee who was absent from work for a year for another reason.
Following Clark v Novacold 1999, CA, the EAT found that the material reason
for Cosgrove’s dismissal was her absence from work for a long period on medical
grounds and an uncertain prognosis as to when she could return. This material
reason related to Cosgrove’s disability.
The EAT criticised the tribunal’s choice of comparator and held Cosgrove was
dismissed for a reason related to her disability and had been treated less
favourably than a person to whom that did not apply.
The EAT also stated that an adjustment such as transferring Cosgrove to
another office, altering her working hours and allowing a gradual return to
work should have been considered by C&H at the time of dismissal and by the
tribunal. The case was remitted to the tribunal to decide the remedy.
Extending time limit to submit defence
Polygon Corporation v Tregunna, unreported, November 2001, EAT
Tregunna was claiming unfair dismissal and although Polygon’s Notice of
Appearance should have been presented by 3 May 2000, it was only presented on 6
June, the day before the hearing.
In the intervening period the Originating Application and notification of
hearing had been sent to Polygon by the tribunal and correspondence had also
been sent by ACAS. Polygon denied receiving the Originating Application.
The tribunal concluded that the Originating Application had probably been
received by Polygon when sent out by the tribunal on 10 April and that Polygon
had simply not bothered to give the matter its full attention until the
At the subsequent hearing the tribunal rejected Polygon’s application to
extend the 21-day time limit for issuing its Notice of Appearance, thus
preventing it from defending Tregunna’s claim.
Polygon’s appeal against the decision not to extend the time was upheld by
the EAT. The tribunal had erred in only considering the length of the delay and
Polygon’s explanation of it.
It should also have addressed the question of prejudice and the apparent
merits of Tregunna’s claim and Polygon’s defence.
The case was remitted for the tribunal to consider these issues.