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Aston v Martlet Group

Jason Braier of 42 Bedford Row highlights some gems from the Aston v Martlet Group judgment.

The EAT judgment in Aston v Martlet Group is lengthy (albeit HHJ Auerbach's shortest of the week) but filled with some gems, highlighted in this thread. Here's the judgment: https://assets.publishing.service.gov.uk/

A was operations manager of a bicycle supply company. He suffered depression and was on long-term sickness. When at a meeting he declined to return to the work in his role, he was dismissed. The employer said they'd give him an ex-gratia £4000 payment.

There was disagreement how to make the payment tax efficiently & it was never paid. At trial there was cross-examination about the £4k & a director said they would still be happy to pay it.

In correspondence after the hearing, the respondent's solicitors denied there was any binding unconditional offer to pay £4k & didn't pay it. A amended to add a victimisation claim.

The EAT judgment provides 3 points of interest about the £4k. 1st, the EAT confirmed that continuing proceedings is as much a protected act as bringing proceedings.

2nd, the EAT held judicial proceedings immunity applied. Detailed consideration was given to the effect of P v Met Police, with Auerbach ultimately concluding that the giving of evidence under oath fell within the scope of 'employment' under the Equal Treatment Directive.

3rd, the circumstances of this case didn't fall within the test for post-termination victimisation under EqA s108(1)(a) - namely discrimination arising out of and closely connected to a relationship that has ended. This part merits closer examination. 

First off, the test is conjunctive - both the origin and connection aspects need to be satisfied. Secondly, the word 'closely' is deliberately used and cannot be qualitatively ignored.

In finding the £4k fell outside s.108(1)(a), the EAT noted the original offer wasn't to settle any claim but was a matter of personal goodwill, was withdrawn months before the hearing & was not itself the subject of any victimisation claim.

The offer made in cross-examination was in the capacity of former employer & though connected to the employment relationship, the connection wasn't close. There were too many links in the chain (the EAT contrasted the close connection test with the chain links under s.15 EqA)

The next point of interest concerned binding findings of fact. The EAT held the ET not bound by a finding at a PH in the same claim where the PH EJ's finding was not one necessary to be made at that hearing.

The final point of interest is the EAT's description of the 'unfavourable treatment' test in EqA s.15 as a low threshold following Williams. Here it was met by a failure to tell A he'd be dismissed if he didn't accept the terms of return.

Jason Braier is a member of the Employment team.


28.05.2019