The Court of Appeal stated that the distinction between reviews and rehearings (in connection with appeals against dismissal) is unhelpful. The essential question when deciding whether a dismissal is fair under ERA 1996, s98(4) is whether the employer acted reasonably. There is no rule of law providing that a 'rehearing' can cure earlier procedural defects, whereas a 'review' cannot.
In particular, the Court held:
- if a first hearing is defective, the appeal can cure the defect if the appeal is comprehensive (para. 37)
- to the extent that the well-known case of Whitbread v Mills suggests that a rehearing can cure defects, whereas a review cannot, Whitbread should no longer be cited to tribunals (para. 47)
This part of the judgment is not quite as easy to understand. The Court appears to be stating that, in order to establish a claim of disability-related discrimination under the DDA 1995:
- an employer must have in mind the disability-related reason (para. 70). Unless that reason affects the employer's mind, he cannot discriminate (para. 72)
- but the employer does not necessarily have to intend to discriminate on disability-related grounds. Discrimination can be unconscious as well as intentional (paras. 72-73)
On the facts, an employer who had dismissed a profoundly deaf employee for misconduct, in circumstances where the employee had not had a fair disciplinary hearing because of his inability to understand what was going on, was found by the Court of Appeal not to have been discriminated against disability-related grounds.
Taylor v OCS Group Ltd