Brief Background
The case involved a dismissal and perceived discrimination (specifically, perceived disability discrimination) Mr. Lee was injured at work, which caused a lengthy period of absence. This resulted in Mr. Lee being dismissed. He was still waiting for treatment when he was dismissed.
Mr. Lee appealed his dismissal, and when he attended the appeal, he had fully recovered, but his appeal was unsuccessful. His employer acknowledged he was recovered but felt there was an “underlying issue” and that he had a “clear susceptibility to further injury.”
Legal Expenses Insurance – LEI
When we were introduced to Mr. Lee, he had already presented his Tribunal case without legal representation.
Thankfully, Mr. Lee had legal expenses insurance (LEI) and we liaised with the insurer on Mr. Lee’s behalf to get cover in place.
We then took over the Tribunal claim, and our fees were funded by the insurer.
Clarifying the Claims
Shortly after taking over the claim, there was to be a “preliminary hearing” (PH), which is where the Tribunal seeks to clarify the claims and make case management orders to ensure the smooth progress of the case.
Clarifying the exact nature of the allegations (both factually and legally) is very important and the PH is the ideal opportunity to do this.
Mr. Lee’s case was complex and document-heavy, but after the PH, the claims he had presented himself were now factually and legally defined.
If claims remain unclear, their chance of success is much lower.
Application to add a new Claim
The facts of Mr. Lee’s case were unique, in that, despite being dismissed for long-term absence, the injury had fully resolved before the end of the process and did not amount to a disability. Without a disability, you are not able to claim ordinary “disability discrimination.”
However, there was an argument that the dismissal appeal failed because the panel believed (albeit wrongly) that Mr. Lee was disabled because they felt he had an underlying condition and would get injured again when returning to work.
This is known as “perceived disability discrimination.”
The basis of the argument was, the appeal did not fail because of a disability, but because the panel perceived (or believed) that there was a disability. This is a different (and lesser-known) type of disability discrimination.
This claim was not originally brought, so we made an application for it to be included in the proceedings.
Second PH
The other side objected to this new claim being included, so the Tribunal listed another PH to decide if this claim (the perceived disability claim) could be included.
The parties attended the Tribunal and made representations and we were successful in getting the new claim added.
Potential Value of Claims
An important point on the potential value of claims is that if an unfair dismissal claim succeeds, the main element of the compensation (the “compensatory award”) is capped at the lower of 52 weeks’ salary or a yearly benchmark (the cap in 2022 as an example is £93,878).
However, if a discrimination claim succeeds, the statutory cap is lifted.
To give an example, if the yearly salary at the relevant employment was £40,000, the compensatory award cannot exceed this amount. Equally, if it was £200,000, it would be capped at £93,878.
The Trial
Working closely with Mr. Lee, we prepared everything for his hearing.
There was a 5-day hearing that took place online.
Mr. Lee gave evidence and the other side had 3 witnesses.
We represented Mr. Lee at the Trial and the judgment was reserved, meaning it was to be sent to us in writing.
Outcome – Unfair Dismissal and Perceived Discrimination
We received the written judgment and the claims for unfair dismissal and perceived disability discrimination succeeded.
This meant the statutory cap to the compensatory award would not be applied.
A remedies hearing was scheduled (this is a hearing to determine compensation).
The parties achieved a settlement, and the remedies hearing was not needed.
We would like to thank Mr Lee for his review below and for allowing us to publish his story above.
