EAT rejects paralegal’s appeal over discrimination claim despite tribunal error

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Employment dispute: Claim did not encompass grievance process

An employment tribunal made a legal error when rejecting a paralegal’s disability discrimination claim but it was not enough to overturn the decision, the Employment Appeal Tribunal has ruled.

His Honour Judge Auerbach upheld the decision that Ralli was justified in deciding to terminate the employment of Celina Stott before the end of her three-month probation period.

The claim was against Ralli Ltd, the personal injury firm based in Sale, Cheshire, as opposed to the Manchester-based commercial firm Ralli Solicitors. The two firms were once one, and still have two partners in common.

Ms Stott was recruited at the end of September 2017. Following her departure, she made multiple discrimination claims against the law firm, along with harassment and a personal injury claim for stress and injury, although they were narrowed down before trial to six complaints linked to her mental health.

The tribunal found as a fact that “at no time prior to her dismissal” did the paralegal disclose her impairment to the law firm, nor was there anything within her CV to suggest that periods of unemployment were the result of ill-health, mental impairment or disability.

Rather, she was “simply not performing at the standard expected of her”. The tribunal found that anyone in Ms Stott’s position who had made the number of errors she had would probably have had their probationary period terminated.

The decision was upheld on reconsideration.

HHJ Auerbach found that the tribunal erred by failing to make a specific finding about whether the “something” for which the claimant was dismissed – her poor performance – arose in consequence of her disability of anxiety and depression.

Ms Stott triggered the firm’s grievance procedure over her dismissal and she argued that it became aware of her disability before her grievance appeal was rejected.

The question then was whether the tribunal should have regarded the grievance process as an integral part of the dismissal process.

Had it, HHJ Auerbach said, the evidence was such that the tribunal “would have been bound to conclude” that information disclosed in that period put Ralli at least on notice that she might be a disabled person.

However, the claim was brought on the basis of the original decision to dismiss, and did not encompass the later dismissal of the grievance appeal.

“It seems to me clear that there was full and careful consideration by the tribunal, at a number of stages, of the scope of her claims… I do not think this is a case where the trial tribunal ought to have considered that there was, or might be, a [disability discrimination] complaint about the decision on the grievance appeal.

“Accordingly, it was not an error to fail to consider such a complaint.”

HHJ Auerbach also held that the tribunal did not err in concluding that the justification defence was made out.

All three elements would have needed to succeed for the appeal to be upheld and, as they were not, the judge held that the tribunal did not ultimately err in dismissing the claim.

The original tribunal criticised the law firm’s failure to check qualifications and references before the paralegal started work in the personal injury department, a failure it acknowledged, saying it had since tightened up checks on job applicants.