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S v Tesco

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Last updated 7th July 2006.

A person who stammers claimed she had been turned down for a job as a wages clerk because of her stammer. The appeal was on a procedural point, and so does not determine the outcome of the case.

Employment Appeal Tribunal, 2006. Full decision: bailii.org.

The claimant worked as a general assistant in a petrol filling station. She applied internally for a job as a wages clerk and was interviewed for a position in May 2004. She claimed that she was telephoned a few days later to say she had not got the job because of her stammer and because she had low confidence.

The claimant did not complain about this to Tesco until an exit interview, following her resignation, in October 2004. The exit interview form recorded: “[The claimant] has had no opportunity to discuss career options. She feels this is because of her stammer that management undervalue her…[She] previously was interviewed for a position before. She was thought capable and ideal for the job. She was refused the position due to her slight stammer as this was considered a ‘weakness’. [The claimant] obviously became unsatisfied with the company after this.”

In November the claimant wrote to Tesco complaining about her non-appointment in May 2004. She presented a DDA claim in January 2005. This claim described the alleged discrimination as the interview in May 2004 and subsequent telephone conversation. The claim said it did not relate to dismissal. The company denied that the claimant was disabled within the DDA or, if she was, that they had discriminated against her on grounds of disability.

At a pre-hearing review (PHR) the claimant applied to extend her claim to say also that she had been constructively dismissed, constituting disability discrimination and unfair dismissal. The Chairman refused to allow this amendment to the claim.

Held by Employment Appeal Tribunal: the Chairman, in the exercise of her discretion, was entitled to conclude that these substantial amendments, made late in the day were not foreshadowed in the original claim form, which expressly stated that the claim was not about dismissal. There were no grounds in law for interfering with that exercise of discretion.

In a joined case, the EAT also decided that a particular rule in Employment Act 2002 on statutory grievance procedures did not detract from a tribunal’s discretion to extend the three month time limit for submitting a claim.

My comment

The EAT’s decision means that, unless the claim is settled out of court or withdrawn, it will go back to be considered by the employment tribunal on the point raised in the original claim form – namely whether there was disability discrimination in her not being given the job as wages clerk.

This does not mean constructive dismissal etc cannot be claimed. However, it is safer where appropriate to include them in the original claim form so that one does not have to rely on the tribunal’s discretion as to whether the claim can be amended.

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