A discrimination case may not proceed on the mere possibility that evidence might emerge during cross examination

ABN Amro Management Services v Hogben [2009] UKEAT 0266_09_0111

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29/11/2009


This case resulted from a merger whereby the claimant failed to be appointed to one of 3 posts available. The claimant alleged that his not being appointed was because of age discrimination (the claimant was older than one, and slightly younger than the two other successful candidates). The respondents attempted have the age discrimination claim struck out under rule 18 (7) (b) of the Employment Tribunal Rules, claiming the case had no reasonable prospect of success.
  • In the absence of material evidence or "any basis for supposing that cross-examination could advance the Claimant's case", the ET was wrong not to strike out the case.
  • The offer by an employer of an enhanced "redundancy payment" in exchange for an employee agreeing not to pursue other claims does not put employees in any given age group at "a particular disadvantage" (as it affects all dismissed employees in a similar manner).
  • But where a case of discriminatory impact is argued, the practice can be justified in that employers should be able to achieve finality regarding all issues related to a dismissal, and that the offering of additional payment to compromise all such issues is a proportionate way of achieving that.
  • The EAT decided that where a case has no reasonable prospect of success it should be struck out.
  • The statutory cap on unfair dismissal claims should not be avoidable by way of bringing unfounded age discrimination claims.
  • As regards a "provision, criterion or practice" (PCP) as required by reg 3 (1) (b), where changes in substantive PCP's were introduced, and the earlier and later PCPs affect different age groups, the PCP won't be constituted solely by the change.

 


The transcript of this case follows:-   ABN Amro Management Services v Hogben [2009] UKEAT  (usually found at the Bailli or Employment Appeals websites)

Some recent employment cases:-
2009
In cases of discriminatory dismissal tribunals may reduce compensation if the worker would in any event have been dismissed - Chagger v Abbey National Plc & Anor [2009] EWCA Civ 1202
In cases of discriminatory dismissal tribunals may reduce compensation if the worker would in any event have been dismissed - Chagger v Abbey National Plc & Anor [2009] EWCA Civ 1202
It is possible to claim unfair dismissal abroad even if the workplace is registered outside the UK - Diggins v Condor Marine Crewing Services Ltd [2009] EWCA Civ 1133
Autoklenz 'Subcontractors' were employees - the contractual substitution clause was just 'window dressing' - Autoclenz Ltd v Belcher & Ors [2009] EWCA Civ 1046
Contract was ultra vires but employee still able to pursue unfair dimsissal claim under ERA 96 - Shrewsbury & Telford Hospital NHS Trust v Lairikyengbam [2009] UKEAT 0499_08_2108
Redundancies - ECJ rules that consultations do not need to begin until the parent company decides which subsidiary will be affected - Akavan Erityisalojen Keskusliitto AEK ry and Others v Fujitsu Siemens Computers Oy - ECJ [2009] Case C-44/08
ECJ rules holiday entitlement must not be lost through illness - Pereda v Madrid Movilidad SA - ECJ [2009] C-277/08
Costs follow lies (breaching confidentiality in a compromise agreement) - Dunedin Housing Association Ltd v. Donaldson - UKEAT [2009] 0014_09_0807
Pre-contractual negotiations can not be used as evidence for the meaning of a contract - Chartbrook Ltd v Persimmon Homes Ltd & Ors [2009] UKHL 38
Failure to fully exhaust statutory dispute resolution procedures means a claimant is barred from seeking redress in the courts - Booth v Oldham MBC [2009] EWCA Civ 880
Employers can not hide behind 'substantial equivalence' arguments to justify post TUPE contract changes - TAPERE v SOUTH LONDON AND MAUDSLEY NHS TRUST - [2009] UKEAT 0410_08_1908
The EAT rejects the refusing of the sole candidate for a job by citing conflict of interest and health and safety arguments - Amnesty International v Ahmed - [2009] UKEAT 0447_08_1308

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