Thomas Cordrey successful in Court of Appeal

On 14 December 2017 the Court of Appeal (McCombe, Underhill and Flaux LJJ), in Xerox (UK) Ltd & Ors v Jahan Zeb [2017] EWCA Civ 2137, allowed Xerox’s appeal against the decision of the President of the EAT.

Mr Zeb had worked as a commercial executive for a Xerox group company and submitted an Employment Tribunal claim which, at a Preliminary Hearing, was determined to comprise three allegations of discriminatory treatment: 1) removing him from his post; 2) leaving him bereft of alternative work; and 3) placing him at risk of redundancy. The Tribunal struck out Mr Zeb’s claim having concluded that the third act was “crucial to put the other [two] claims in time” and that it was utterly implausible as a discrimination claim: Mr Zeb and all of his colleagues had been simultaneously placed at risk of redundancy as a result of an offshoring exercise where the work was being moved to the Philippines. There was no prima facie evidence that Mr Zeb had been placed at risk of redundancy because of his race, sex or religion.

On appeal by Mr Zeb the EAT adopted the ET’s analysis that there were three acts complained of but overturned the strike out, holding that the third act was reasonably arguable. The President of the EAT, Simler J, held that there was a crucial core of disputed fact regarding the inferences to be drawn from Mr Zeb’s treatment by two managers and that this should be resolved at a full hearing.

On a further appeal, the Court of Appeal upheld Xerox’s appeal concluding that, unusually, both the ET and EAT had misunderstood the Claimant’s claim and that he had never in fact been relying on the third act as a separate act of discrimination. The Court of Appeal was sympathetic to the lower courts for having fallen into that error, noting that the presentation of the case by the Claimant had been far from clear.

Xerox had argued that if the third act was knocked out then because that act had been held by the ET to be crucial to keep the claim in time, the entire claim must be dismissed. However, whilst noting it was unfortunate for Xerox, the Court of Appeal concluded that the ET’s statement that the third act was crucial to put the other claims in time was not a correct statement of the position. In fact, the Claimant had relied on the first two acts as continuing acts to keep the claim in time, rather than relying on the third act for that purpose. The case was therefore remitted to an ET to determine whether the first two acts were discriminatory.

Thomas Cordrey acted for Xerox (UK) Limited, instructed by Ann Leigh-Pollitt, Xerox Europe Legal Department

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