This week’s care roundup
What is meant by "just and equitable?"
Barlow v London Borough of Southwark, unreported, September 2001
Barlow claimed race discrimination but submitted her application outside the
prescribed three months’ time limit. The Employment Tribunal refused to hear
the claim because it did not consider it "just and equitable" to
exercise its discretion to extend the time limit.
Barlow successfully appealed to the EAT. The term "just and
equitable" gave Employment Tribunals a wide discretion to consider
anything they judged to be relevant. The tribunal should consider the prejudice
each party would suffer as a result of its decision, having regarded all the
circumstances, the length of the delay, and the reasons for it. In Barlow’s
case, the tribunal had failed to consider the prejudice she faced as a result
of its decision – namely being unable to proceed with her claim. The tribunal
also failed to identify the reasons for the delay and miscalculated the length
of the delay. The matter was remitted for reconsideration.
Dismissal for persistent absence lawful, despite disability
Callagan v Glasgow City Council, IRLR 724, EAT
Callagan commenced employment in 1993 and in 1996 his attendance record
deteriorated. He failed to follow the absence reporting procedures and was
given a verbal warning, followed by a written warning in November 1997.
The council arranged meetings to discuss the situation but Callagan failed
to attend. His attendance remained poor and in September 1999 he was dismissed.
Callagan claimed disability discrimination on the basis that his absences
were caused by a disability (depression) and that he had been treated less
favourably because of this. He was unsuccessful, because although qualifying as
disabled under the definition of Disability Discrimination Act, the reasons for
his dismissal were material and substantial and justified that dismissal. These
were namely his absences, his failure to follow the reporting procedures,
failure to respond to the council’s attempts to accommodate him and the fact
that when dismissed he was unfit for work and it was unclear when he would
return.
No duty existed to offer part-time work as a reasonable adjustment in
circumstances as Callagan had not requested it, had a poor record and at the
time could not work at all. Had part-time work been requested it would have
been arranged.
Callagan unsuccessfully appealed to the EAT. A causal connection between the
discrimination and the justifying circumstances, which must be material and
substantial, had been established. And contrary to a previous and unrelated EAT
decision, the council’s lack of knowledge of Callagan’s disability was not
fatal to the issue of justification.
