Second time unlucky!

A few years ago now (I had tried to blank the events from my memory) I appeared in the Employment Appeal Tribunal in a protected disclosure case (PAS Limited v Burrows UKEAT/0489/06 – link below). My opponent and I had agreed at the Tribunal hearing that the correct test for drawing an inference was Igen v Wong as this area of law was akin to victimisation in discrimination cases. Imagine our surprise when we turn up at the EAT only to be told a few days earlier HHJ Peter Clarke had heard a similar appeal and ruled that this was not the correct approach. Not surprisingly the appeal was remitted for the matter to be reconsidered applying the correct test. It was I think one of the quickest appeals in Employment Appeal Tribunal history!

Kuzel v Roche Products Limited [2008] EWCA Civ 380 (link below) went on to the Court of Appeal and established that the test was different for protected disclosures. The key of course being that a Tribunal may draw a conclusion when a Respondent’s explanation has been rejected rather than must. This in most cases makes no difference to the outcome but in some limited cases it has proved crucial.

Imagine my surprise (yes again!) as I prepare another appeal to the Employment Appeal Tribunal some years later to find that the Employment Appeal Tribunal have now caught up with what now appears to have been the enlightened thoughts of two Counsel clearly looking beyond the envelope (my exaggeration).

In Fecitt & Others v NHS Manchester [2011] IRLR 111 (link below) the Employment Appeal Tribunal decided that: What amounts to causation in cases of victimisation in discrimination claims is the same as that applicable to victimisation for whistle-blowing and to other forms of discrimination.

This unfortunate turn of events whilst satisfying for me is I am afraid unlikely to help the appeal as the Tribunal decision predates the decision in Fecitt! Perhaps I may be about to set a new Employment Appeal Tribunal hearing record again!

PAS: http://www.bailii.org/uk/cases/UKEAT/2007/0489_06_0603.html

Kuzel: http://www.bailii.org/ew/cases/EWCA/Civ/2008/380.html

Fecitt: http://www.bailii.org/uk/cases/UKEAT/2010/0150_10_2311.html