Brian Burgess v Robert Kempson
[2023] EWHC 2216 (Ch)
Dr S Hassane v GlaxoSmithKline Services Unlimited
7 December 2023
[2023] EAT 150
Employment Appeal Tribunal
Someone was fired and claimed unfair dismissal and discrimination. They said the company treated another employee better when it came to finding them a new job. The judge said the fired person hadn't raised this specific point clearly enough, and the company’s explanation for the firing was good enough. So, the judge’s decision to not side with the fired person was upheld.
Key Facts
- •Dr S Hassane (Appellant) appealed an Employment Tribunal (ET) decision dismissing his unfair dismissal and discrimination claims against GlaxoSmithKline Services Unlimited (Respondent).
- •The appeal focused on whether the ET failed to address Hassane's argument regarding the Respondent's differential treatment of Adele Cheli in relation to alternative employment.
- •Hassane argued this was relevant to unfair dismissal and shifting the burden of proof in discrimination claims.
- •The ET's list of issues did not explicitly include a comparison with Cheli, though Hassane raised it during the hearing and in his witness statement.
- •Cheli's appointment to a relevant role occurred after Hassane's dismissal.
- •The ET found Hassane hadn't provided sufficient evidence to support his discrimination claims or show unfairness in the redundancy process.
Legal Principles
In ET proceedings, the issues determined are defined by the claim and response, not solely by later additions.
Chandhok and anor v Tirkey [2015] ICR 527
The ET does not have a proactive or inquisitorial role in determining a party's case; it is for the claimant to ensure all relevant evidence is before the ET.
Mensah v East Hertfordshire NHS Trust [1998] IRLR 531 CA, Efobi v Royal Mail Group Ltd [2019] IRLR 352, Joseph v Brighton and Sussex University Hospitals NHS Trust UKEAT/0001/15, Derby County Council v Marshall [1979] IRLR 261 EAT, McNichol v Balfour Beatty Rail Maintenance Ltd [2002] IRLR 711 CA
In unfair dismissal cases involving redundancy, the issue of alternative employment is inherent in the claim of fairness.
Langston v Cranfield University [1998] IRLR 172 EAT
To establish discrimination, a claimant must demonstrate more than a difference in protected characteristic and treatment; something more is needed to shift the burden of proof.
Madarassy v Nomura International plc [2007] IRLR 246
An ET's reasons must be adequate to explain its conclusions.
Meek v City of Birmingham District Council [1987] IRLR 250 CA, Frame v Governing Body Llangiwg Primary School [2020] UKEAT/0320/19
Outcomes
Appeal dismissed.
The ET correctly focused on the claims as presented in the initial documents and further particulars. Hassane failed to provide sufficient evidence to support his claims regarding Cheli's appointment, and the ET's reasoning on alternative employment was adequate.