Judgment approved by the court Aslam v Transport UK London Bus Ltd
Rolls Building
Fetter Lane, London, EC4A 1NL
Before :
MR RECORDER GAVIN MANSFIELD KC
Between :
MR JAMSHID ASLAM Appellant
- and -
TRANSPORT UK LONDON BUS LTD
(formerly known as Abellio London Limited) Respondent
The Appellant in person
REBECCA JONES (instructed by Backhouse Jones) for the Respondent
Hearing date: 24 June 2025
JUDGMENT
SUMMARY
VICTIMISATION
The Claimant alleged that the Respondent’s withdrawal of a job offer was an act of victimisation, contrary to section 27 Equality Act 2010.
The Claimant had told the Respondent about a tribunal claim against a previous employer, and during the course of his induction process he had emailed Respondent to raise a question as to whether there was a difference in treatment on grounds of race between himself and other candidates. The Tribunal found that the Respondent did not withdraw the job offer because the Claimant had donea protected act: it found that the decision-makers did not know the earlier claim was a claim of discrimination, and that the later email did not amount to a protected act. However, the Tribunal found that the fact of the earlier claim and the email led the Respondent to believe that the Claimant may do a protected act in future (s.27(1)(b)). Accordingly it upheld the claim.
On application by the Respondent, the Tribunal immediately reconsidered its decision. It held that the claim under s.27(1)(b) had not been pleaded and therefore it could not uphold it. It therefore reconsidered the judgment in the interests of justice and dismissed the claim.
On appeal by the Appellant it was held:
The Tribunal erred in holding that the claim based on the Respondent’s belief that the Claimant may do a protected act was not within the claim pleaded in the Grounds of Complaint. The two variants on the claim were very closely related and arose from the same facts, the only difference being the exact reasoning of the Respondent.
The Tribunal erred in holding that the fact that the claim was not pleaded was determinative of whether the initial judgment should be reconsidered in the interests of justice. The Tribunal should have carried out a broader assessment of the circumstances in determining the interests of justice. Had it done so, in the particular circumstances of this case, the only permissible decision within the Tribunal’s discretion would have been to allow the initial decision to stand.
MR RECORDER GAVIN MANSFIELD KC:
INTRODUCTION
The Claimant was an applicant for a job with the Respondent, a bus company. In circumstances I will describe more fully in a moment, he was conditionally offered a role and attended induction, but the offer was in due course withdrawn. The Claimant claimed that was direct race discrimination and victimisation. The claim was initially upheld in part but the Tribunal subsequently reconsidered its decision and dismissed the claim on the grounds that the successful part of the claim had not been pleaded. The question for this appeal is whether the Tribunal erred in doing so.
The claim was heard by a Tribunal sitting at London South (Employment Judge Abbott, sitting with lay members Mr Singh and Dr Chacko) on 13-15 December 2023. At the end of the case the Tribunal gave an oral decision upholding the claim for victimisation but dismissing the claim for direct discrimination.
However, the Respondent immediately applied for a reconsideration under r.70 of the Employment Tribunal Rules 2013, on the basis that the Tribunal had rejected the only victimisation claim pleaded and had found in the Claimant’s favour on a claim that had not been pleaded. The essence of the distinction was this:
Section 27(1) Equality Act 2010 provides that a person (A) victimises another person (B) if A subjects B to a detriment either because (a) B does a protected act, or (b) A believes that B has done or may do a protected act.
The pleaded claim in the ET1 was that the Respondent subjected the Claimant to detriment because he had done protected acts (i.e. within s.27(1)(a)). That claim failed because the Tribunal found that the acts relied on were not protected acts within the meaning of s.27, or that the relevant decision-makers within the Respondent did not have sufficient knowledge of the nature of the protected acts.
The claim that the Tribunal upheld was that the Respondent subjected the Claimant to detriment because it believed that he may do a protected act in future (i.e. within s.27(1)(b)). The Tribunal found that claim to be made out on the facts but the Respondent argued that the claim had not been pleaded.
The Tribunal accepted the Respondent’s argument on the pleadings and reconsidered its initial judgment in the interests of justice. It varied its decision, dismissing the victimisation claim.
The Claimant represented himself in the Tribunal and in the EAT. He had solicitors at time the ET1 was drafted and presented, but not thereafter. The Respondent was represented, in the Tribunal and in the EAT, by Ms Rebecca Jones of counsel.
GROUNDS OF APPEAL
The appeal was sifted by Michael Ford KC on 25 June 2024. Mr Ford KC permitted the grounds raised in paragraphs 1-5 of the Notice of Appeal to go to a full hearing. Mr Ford KC identified the following arguable points as covered by those paragraphs. I summarise:
It was arguable that the Tribunal erred in the approach it took to the victimisation claim. Under s.27(1)(b) it is sufficient that an employee believes that the employee has done or may do a protected act.
It was arguable that the Tribunal was too restrictive in its approach to the pleading in light of how the claim was framed in the ET1. It was arguable that the Tribunal should have considered that the pleaded claim could embrace a claim under s.27(1)(b).
It was arguably incumbent on the Tribunal to consider whether the job offer was refused because the relevant individuals believed that the Claimant had done a protected act.
In circumstances where the evidence about the precise decision-making process appears to have emerged in the hearing, it was arguable that fairness required the Tribunal to read the pleaded claim more widely, or to consider whether to permit the claimant to amend his claim.
The remainder of the Notice of Appeal (paragraphs 6-16) was held by Mr Ford KC to contain no arguable grounds of appeal, and he made a direction under r.3(7) EAT Rules 1993. There has been no r.3(10) application in relation to those grounds.
THE FACTS
For approximately 17 years the Claimant was employed by Metroline. He was dismissed on 30 January 2019. Following his dismissal, he brought a claim against Metroline alleging unfair dismissal, direct disability discrimination and victimisation.
On 13 April 2019 he applied for a job with the Respondent. In his application he disclosed that he had partial hearing loss, and that he suffered from depression, anxiety, insomnia and stress.
He was interviewed on 14 May 2019 by Ms Merican. He disclosed that he had been dismissed by Metroline on grounds of capability and was pursuing a tribunal claim. The Tribunal found (contrary to Ms Merican’s evidence) that the Claimant said that his tribunal claim related to his disability.
Ms Merican decided to offer the job to the Claimant, conditional on receipt of a satisfactory reference.
The Respondent did not permit the Claimant to carry out any shifts until he had attended an induction. When he attended the induction, he learned that two other individuals had been allowed to work shifts before they had attended the induction. On 11 June 2019 the Claimant emailed two of the Respondent’s employees involved in the process, Ms Morrison and Ms Merchant. The email was headed “Question/complaint in relation to Abellio” (Abellio was the Respondent’s former name). The email questioned why other individuals had been allocated shifts before induction when the Claimant had not been. It asked “is this because they are of a different race?”
The Tribunal in due course found that the reason for the difference in treatment was not race, but the fact that the other individuals had already worked as agency workers for the Respondent. That was a key factor in the Tribunal’s reasoning in dismissing the direct race discrimination claim. The relevance of the email in this appeal is whether it amounted to a protected act for the purposes of the victimisation claim.
The Tribunal accepted that neither Ms Morrison nor Mr Merchant interpreted the email to be a complaint or a grievance. Ms Morrison forwarded the email to her manager, Mr Dyett, whose reply was “Is he for real?” and “he cannot work for us”. The Tribunal found that Mr Dyett was not involved in the decision-making process regarding the Claimant, but that Ms Morrison would have been influenced, at least sub-consciously, by Mr Dyett’s reaction.
Ms Morrison spoke to Ms Merican about the email, and Ms Merican told Ms Morrison that the Claimant had a tribunal claim against Metroline. The Tribunal accepted that there was no discussion of the nature of the claim.
By 12 June, no reference had been obtained from Metroline despite a number of requests. On 12 June Ms Morrison and Mr Merchant discussed the 11 June email, the fact of the tribunal claim, and the difficulty obtaining a reference. The Respondent’s systems recorded that Ms Morrison “wants to withdraw the offer”.
On the same day Ms Morrison wrote to her line manager, Mr Tigreros, identifying (1) the 11 June email, (2) the difficulties obtaining a reference from Metroline and (3) the fact of the tribunal claims against Metroline. On the same day Mr Tigreros confirmed he agreed “to stop this process with immediate effect.”
Shortly afterwards Mr Tigreros emailed Ms McDonnell, HR Manager to seek advice. He wrote:
“We have found out today that this person is currently dealing with a Tribunal against Metroline, so we have decided to stop the process to make sure we do not get into future issues, but I would like to get your advice to make sure we use the appropriate wording to withdraw the offer.
I was thinking about withdrawing the job offer due to unsatisfactory references…”
Mr Merchant replied:
“…in a case like this it is important not to say that we are withdrawing his application due to unsatisfactory references, as we have not received an unsatisfactory reference and if he did request a copy of the reference we were provided we wouldn’t really have a leg to stand on.”
The Tribunal found that the decision to withdraw the offer was made on 12 June and that Mr Tigreros was the decision maker, albeit acting on information from Ms Morrison.
Mr Merchant was instructed to take no further steps to obtain a reference, notwithstanding that the conditional offer contemplated a period of three months for receipt of a satisfactory reference. A letter withdrawing the offer was sent to the Claimant on 20 June 2019.
THE TRIBUNAL’S REASONS
The Tribunal’s written reasons, sent to the parties on 30 January 2024, set out the decision as varied following the reconsideration of its initial oral decision.
At paragraph 3 of the Reasons, the Tribunal refers to its “initial decision” to uphold the complaint of victimisation, and the immediate application by the Respondent for reconsideration. It records that it had found that the Respondent had subjected the Claimant to a detriment because it believed the Claimant may do a protected act, contrary to s.27(1)(b) Equality Act 2010.
Also at paragraph 3, the Tribunal refers to the application for reconsideration and stated that the Respondent was correct in arguing that the claim had only been pleaded on the basis of s.27(1)(a) Equality Act 2010. The Tribunal state “We accordingly reconsidered our initial judgment in accordance with Rule 70 of the Employment Tribunal Rules of Procedure 2013, it being necessary in the interests of justice to do so, and varied our disposal of the complaint of victimisation so that it would be dismissed as the pleaded case had failed.”
At paragraph 28, the Tribunal set out the factual finding central to its initial decision to uphold the complaint under s.27(1)(b):
“It falls to the Tribunal to determine on the balance of probabilities what the reason for withdrawing the job offer was. We do not have the benefit of evidence from Mr Tigreros as to what was in his mind, though we did have evidence from Ms Morison and Mr Merchant and the contemporaneous emails. In our judgement, on the balance of probabilities, the true reason for withdrawing the job offer was, as is set out in Mr Tigreros’ email, to avoid future issues. In our judgement, given the overall context included both (1) the fact that the claimant was pursuing a claim against his former employer and (2) the fact that the claimant had raised a question around differential treatment on the basis of race, it could properly be inferred that those “future issues” sought to be avoided could include a complaint or claim of race discrimination.”
The Tribunal briefly set out the law in relation to victimisation at paragraphs 35-37. The discussion and conclusions in respect of the victimisation claim are at paragraphs 45-52; those paragraphs reflect the reconsidered decision. The essential steps in the Tribunal’s reasoning are as follows.
Second, the claim that the Respondent withdrew the job offer because the Claimant had done a protected act (contrary to s.27(1)(a)) failed:
The Tribunal claim against Metroline was a protected act. However, the relevant decision makers (Mr Tigreros, Ms Morrison, Mr Merchant) knew only that the Claimant had brought a Tribunal claim and not that it was a claim of discrimination. The Tribunal held that following Aziz v Trinity Street Taxis [1988] ICR 534, it is not possible for them to have subjected the Claimant to a detriment because he had done that protected act.
The 11 June 2019 email was not a protected act, because it did not allege race discrimination, it merely raised a question regarding a possible differential treatment on the basis of race.
Later acts alleged to be protected acts postdated the decision to withdraw the offer, and the revocation cannot possibly have been because of them.
Accordingly, the Tribunal concluded:
In the light of the above, we cannot find that the claimant was subjected to a detriment because the claimant had done a protected act. As this was the only way in which the victimisation claim was pleaded – specifically there is no pleaded case that the claimant was victimised because the respondent believed that he may do a protected act in future – the victimisation claim must fail.
The claimant may consider this to be a harsh result in the light of our factual findings at paragraph 28 above. However, we are bound by law to consider only matters that are pleaded. We note that, although the claimant did apply to amend his claim on three occasions, none of those applications identified a claim of this nature whilst the claimant may be able to draw some degree of vindication from the factual findings we have made, because his pleaded case has failed, the complaint of victimisation must be dismissed.”
DISCUSSION
I have set out Mr Ford KC’s framing of the grounds permitted to proceed above. I will address those points under the summary headings used by the Respondent in its Skeleton Argument.
Did the ET err in its approach to the victimisation claim?
This point can be taken briefly. It is clear that the Tribunal did have in mind that a victimisation claim could succeed on the basis that an employer believes an employee has done or may do a protected act. The Tribunal dismissed the claim not because it did not recognise such a claim in law, but because it held that such a claim had not been pleaded. I agree with the Respondent’s submission on this point.
Was the Tribunal too restrictive in the approach it took to the Claimant’s pleading?
The Appellant argues that his claim was pleaded broadly enough encompass both a claim that the relevant detriment was because he had done a protected act, and a claim that the Respondent believed that he had done or may do a protected act.
The Respondent argues that the Tribunal was correct to conclude that the claim was put only on the basis that he was subjected to a detriment because of the particular protected acts pleaded at paragraphs 25-27 of the Grounds of Complaint. It is necessary to consider how the claim was pleaded, and how it progressed through the case management phase.
The Grounds of Complaint were drafted by solicitors acting for the Claimant at the time. They set the case out (so far as material for current purposes) as follows:
Paragraph 1 states that the Claimant brings a claim for “Victimisation (section 27(1), Equality Act 2010)”.
Under the heading “Background” the relevant facts are set out at paragraphs 2-21. Paragraph 19 quotes the exchange of emails between Mr Tigreros, Ms McDonald and Mr Merchant on 12 and 13 June 2019 that I set out above. The Respondent draws attention to the fact that the pleader highlighted part of the email, but not the passage referring to “future issues”:
“..We have found out today that this person is currently dealing with a Tribunal against Metroline, so we have decided to stop the process to make sure we don’t get into future issues, but I would like to get your advice to make sure we use the appropriate wording to withdraw the offer. [emphasis added]
At paragraph 25, the pleader sets out the protected acts relied on, first by cross-reference to paragraphs 3,5,12,12,16 and 17. (It appears to me that the double reference to paragraph 12 is a typographical error, and the intention was to refer to paragraphs 11 and 12). Then it is pleaded that “The acts of pursuing a claim of discrimination against his Former Employer, the email to Ms Morrison on 11 June 2019 and the follow ups are all protected acts.”
Paragraph 26 pleads that within one day of the complaint on 11 June the Respondent discussed the termination of his contract as referenced in paragraph 19 above (i.e. including the emails I have quoted above).
Paragraph 27 pleads “Because the Claimant did one or more of the protected acts, he was dismissed and the Respondent did not take steps to obtain a reference or respond to his complaint. The actions of the Respondent are clearly because of the Tribunal claim as the Respondent says ..” the pleader then quotes, again, Mr Tigreros’ email of 19 June 2019.
In the Grounds of Resistance, the Respondent denied that the Claimant was subjected to victimisation as alleged or at all. It was denied that the Claimant did a protected act, or that he was subjected to detriment. At paragraphs 15, 24, 43 and 46, the Respondent pleaded that the decision to withdraw the offer was made because it had been unable to obtain a reference from Metroline. Paragraph 46 denied that the alleged acts or omissions of the Respondent were because of a protected act. The pleaded reason for the withdrawal of the Claimant’s offer of employment was “the Respondent’s failure to obtain satisfactory references and was unrelated to any alleged protected act.”
A preliminary hearing took place on 18 May 2020. By that time, the Claimant was a litigant in person. The hearing proceeded in his absence as neither the Tribunal nor the Respondent had telephone contact details for him. Employment Judge Ferguson summarised the essence of the claim at that time succinctly as follows:
“The claim is essentially about an offer of employment being withdrawn. The claimant says this was motivated by his race and/or the fact that he was pursuing a tribunal claim against his former employer. The respondent says it was because they did not receive a reference from the claimant’s most recent employer.”
The Claimant subsequently made three applications to amend his claim. Those applications were considered at a further preliminary hearing on 26 April 2022. The Claimant appeared in person. Employment Judge Siddall recorded the following about the amendment applications:
“The matters he raised were covered by his existing claims of direct race discrimination and victimisation. He agreed that the additional material amounted to evidence about his claims but did not give rise to fresh allegations. He therefore did not proceed with his applications for amendment and I have treated them as withdrawn.
The three amendment applications did not specifically raise a point about s.27(1)(b). However, the Claimant continued to assert that the reason for withdrawal of the job offer was because he had brought tribunal proceedings against Metroline and because he had made a complaint or grievance in the 11 June 2019 email, not because of the Respondent’s stated reason that they did not receive a reference. At this hearing the list of issues prepared by the Respondent was agreed. The issues for the victimisation claim reflected the Ground of Complaint. There were a series of issues as to whether there were any protected acts; an issue as to whether the Claimant suffered a detriment and then the final issue was if the Claimant was subjected to detriment “was this because the Claimant carried out a protected act(s)?”
It is clear from the Grounds of Complaint that (a) it is expressly stated that the Claimant’s dismissal was because he had done one or more of the protected acts; and (b) it is not expressly stated that the Claimant’s dismissal was because the Respondent believed that the Claimant had done or may do a protected act. Nonetheless, can the Grounds of Complaint be read with sufficient latitude to include the latter point?
In support of her argument that the claim cannot be read with such latitude, Ms Jones relied on three authorities as to the importance and effect of pleadings in the Tribunal.
In Chandhok v Tirkey [2015] ICR 527 Langstaff J said the following:
…. The claim, as set out in the ET1, is not something just to set the ball rolling, as an initial document necessary to comply with time limits but which is otherwise free to be augmented by whatever the parties choose to add or subtract merely upon their say so. Instead, it serves not only a useful but a necessary function. It sets out the essential case. It is that to which a Respondent is required to respond. A Respondent is not required to answer a witness statement, nor a document, but the claims made – meaning, under the Rules of Procedure 2013, the claim as set out in the ET1.
I readily accept that Tribunals should provide straightforward, accessible and readily understandable fora in which disputes can be resolved speedily, effectively and with a minimum of complication. They were not at the outset designed to be populated by lawyers, and the fact that law now features so prominently before Employment Tribunals does not mean that those origins should be dismissed as of little value. Care must be taken to avoid such undue formalism as prevents a Tribunal getting to grips with those issues which really divide the parties. However, all that said, the starting point is that the parties must set out the essence of their respective cases on paper in respectively the ET1 and the answer to it. If it were not so, then there would be no obvious principle by which reference to any further document (witness statement, or the like) could be restricted. Such restriction is needed to keep litigation within sensible bounds, and to ensure that a degree of informality does not become unbridled licence. The ET1 and ET3 have an important function in ensuring that a claim is brought, and responded to, within stringent time limits. If a “claim” or a “case” is to be understood as being far wider than that which is set out in the ET1 or ET3, it would be open to a litigant after the expiry of any relevant time limit to assert that the case now put had all along been made, because it was “their case”, and in order to argue that the time limit had no application to that case could point to other documents or statements, not contained within the claim form. Such an approach defeats the purpose of permitting or denying amendments; it allows issues to be based on shifting sands; it ultimately denies that which clear-headed justice most needs, which is focus. It is an enemy of identifying, and in the light of the identification resolving, the central issues in dispute.
In summary, a system of justice involves more than allowing parties at any time to raise the case which best seems to suit the moment from their perspective. It requires each party to know in essence what the other is saying, so they can properly meet it; so that they can tell if a Tribunal may have lost jurisdiction on time grounds; so that the costs incurred can be kept to those which are proportionate; so that the time needed for a case, and the expenditure which goes hand in hand with it, can be provided for both by the parties and by the Tribunal itself, and enable care to be taken that any one case does not deprive others of their fair share of the resources of the system. It should provide for focus on the central issues. That is why there is a system of claim and response, and why an Employment Tribunal should take very great care not to be diverted into thinking that the essential case is to be found elsewhere than in the pleadings.
Ms Jones also relied on Marrufo v Bournemouth Christchurch and Poole Council UKEAT/0103/20/BA where Stacey J said:
“Precision, specificity and clarity are required in the statements of case or pleadings in the Tribunal, particularly in discrimination complaints where a number of causes of action are relied on. The Respondent has to know the case that it has to meet to enable it to respond with equal precision, specificity and clarity to enable both sides to understand the issues in dispute and prepare for an eventual hearing.”
Ms Jones further relied on the decision of the Court of Appeal in Moustache v Chelsea and Westminster Hospital NHS Foundation Trust [2025] EWCA Civ 185, [2025] IRLR 470. Moustache was concerned with the circumstances in which a tribunal comes under a duty to identify and determine a claim which is not in an agreed list of issues. A particular claim had not been included in the list of issues before the tribunal, and the tribunal did not determine it. The EAT allowed an appeal on the basis that the tribunal had been wrong to not to identify the claim and determine it. The Court of Appeal allowed an appeal against the EAT’s decision and reinstated the tribunal’s decision. Warby LJ reviewed a number of authorities relating to lists of issues, pleadings and the circumstances in which a tribunal may appropriately provide assistance to a litigant in the formulation of their case. Warby LJ cited paragraphs 16-17 of Langstaff J’s decision in Chandhok with approval. At paragraphs 39-40 Warby LJ said:
The following analysis seems to me correct in principle and consistent with the case law. The starting point is to consider what claims emerge from an objective analysis of the statements of case. A failure by the tribunal to identify and address those claims is liable to amount to a breach of its core duty and hence an error of law. A failure to identify and determine a claim that does not emerge from such an analysis can amount to an error of law but only in rare or exceptional circumstances of the kind outlined in Drysdale . It is inthis overall context that the role of an agreed list of issues falls for consideration.
A list of issues is not a pleading but a case management tool. The main purpose of such a document is to summarise the existing pleadings not to amend them. On the other hand, as Mensah shows, a party may conduct itself in such a way as to lose the right to have the ET decide a pleaded issue, thereby reducing the scope of the tribunal's corresponding duty. An agreed list of issues is one way in which that could in principle be done. Such a list is, after all, an express agreement that the tribunal should conduct the proceedings in a particular way, and an invitation to the tribunal to do so. A tribunal will usually be entitled to confine its attention to the issues on the list. By way of exception, however, it may be necessary in the interests of justice to depart from even an agreed list. There are at least two distinct categories of situation in which that may be so. The first is where a pleaded claim has been omitted from the list in circumstances that do not amount to abandonment of the claim. The second is where the claim has not been pleaded but the fundamental duty of fairness makes it necessary (that is to say, essential) that it should be raised and considered.
As an example of the second category, Warby LJ cited McLeary v One Housing Group Ltd UKEAT/0124/18in which HHJ Auerbach held that the tribunal erred in law by overlooking a claim that discrimination during employment had contributed to the employee’s constructive dismissal. Warby LJ found that the ratio of that case was that on an objective reading of the statements of case in their proper context the employee was claiming that her constructive dismissal flowed from acts of discrimination. He also found that an alternative ground of decision was a finding that if the discrimination claim was not clearly pleaded then, on the facts of the case, the claim was so obvious that it was perverse of the tribunal not to identify it.
Applying these principles to the pleadings in this case, in my judgment the Tribunal erred in law in concluding that the claim it initially upheld did not fall within the Claimant’s pleaded case. As Chandhok makes clear, the purpose of pleading in the tribunal is to set out the the essence of the parties’ case, so that the case is kept within reasonable bounds and the parties are able to prepare and answer the case against them. I accept that in this case the Grounds of Complaint did not expressly allege that the Respondent’s action were done on grounds that it believed the Claimant may do a protected act. However, the distinction between the pleaded claim and the claim the Tribunal held to be unpleaded is wafer thin. Further, the only difference between the two formulations of the claim was the precise reason of the Respondent for its actions: a matter entirely within the Respondent’s knowledge.
All of the relevant facts for the s.27(1)(b) claim were pleaded in the Grounds of Complaint. The claim did not turn on additional facts. Even the emails which led the Tribunal to its findings as to the Respondent’s reasons were pleaded.
The only difference between the two versions of the claim were the decision-maker’s reason for its treatment of the Claimant: was the reason because the Claimant had done a protected act, or because the decision-maker believed that the Claimant may do a protected act?
That distinction is a particularly narrow one in this case, because both formulations of the case turn on the same alleged protected acts. The Claimant alleged that his job offer was withdrawn because he had brought a claim against Metroline and because of his email of 11 June 2019. That is, broadly, how Employment Judge Ferguson had summarised the claim at the first preliminary hearing. Both the s.27(1)(a) claim and the s.27(1)(b) claim flow from that allegation. In the former, the claim is that the Respondent subjected the Claimant to detriment because of those acts, which were protected acts. In the latter, the claim is also that the Respondent subjected the Claimant to detriment because those acts: whether or not they were protected acts, they were acts which led the Respondent to believe that the Claimant may do protected act in future. The belief as to the the future arose from the same acts that the Claimant had done in the past.
The distinction is also particularly narrow because in many cases both types of reason will be present in the mind of the respondent. While there are cases where respondent acts purely out of revenge or retaliation, in many victimisation cases part at least of the respondent’s reasoning may be a concern that a claimant who has complained of discrimination in the past may make further complaints in future and be a trouble maker. That may be particularly so in job application cases. Typically in such a case there is no prior relationship between the parties, and the prospective employer’s concern about prior complaints may be that they will lead to further complaints in future.
This Respondent’s reason for subjecting the Claimant to detriment was, of course, peculiarly within the knowledge of the Respondent itself. Given the facts pleaded by the Claimant, the Respondent knew that it would have to address its reason for withdrawing the offer; it knew that the Claimant’s case was that the offer was withdrawn because the Respondent knew of the Metroline claim and the 11 June email. The Respondent’s defence did not turn on subtle distinctions as to its exact state of mind but on a rather starker factual disagreement. As I have outlined above, the Respondent’s factual case was that the withdrawal was not because of the earlier claim or the email at all, but rather because it had been unable to obtain reference for the Claimant. The Respondent knew from the pleadings the essential case it had to meet. It put forward its reason for treatment which the Tribunal rejected.
In those circumstances, the Grounds of Complaint were to be taken as including a claim that the reason the Respondent withdrew the job offer was that it believed, on the basis of the Metroline tribunal claim and the 11 June email, that the Claimant may do a protected act in future.
Was it incumbent on the Tribunal to consider whether the offer was withdrawn because the relevant individuals believed that the Claimant had done a protected act?
I can also deal with this point briefly. In its initial decision the Tribunal held that the Respondent victimised the Claimant because it believed he may do a protected act in future. There was no need for the Tribunal to consider this alternative basis of claim, although it could have done so. It did not make findings as to whether the Respondent believed the earlier acts to be protected acts. It would not have led to any additional finding of liability or remedy had it done so. When it came to reconsider its decision it decided that no claim under s.27(1)(b) was within the pleaded claim. If it had been right about that (and I have held above that it was not), that would have been fatal to this formulation of the claim, just as it was fatal, in the Tribunal’s reasoning, to the claim based on belief as to future protected acts. So this ground takes the appeal no further forward.
Did fairness require the Tribunal to read the pleaded claim more widely or consider whether to permit the Claimant to amend his claim?
There are two stages at which this question can be considered. First, the question may arise at the beginning of the hearing of the case. The question did not in fact arise at that stage: because the Tribunal did hear and determine the claim on the wider basis, without discussion or without considering the need for amendment. The second stage was when the Respondent applied for reconsideration of the Tribunal’s initial decision. That is the crucial stage. Given that the initial decision was to find in the Claimant’s favour on the victimisation claim, this appeal is essentially about the Tribunal’s decision to reconsider its judgment, and whether it committed an error of law in doing so.
Rule 70 ETR 2013 (now found in rule 68 ETR 2024) provides that a tribunal may reconsider any judgment where it is necessary in the interests of justice to do so. A judgment under reconsideration may be confirmed, varied or revoked. If the judgment under reconsideration is revoked the tribunal may take the decision again and in doing so is not required to come to the same conclusion.
The approach to reconsideration was addressed recently by the Court of Appeal in Phipps v Priory Education Services [2023] IRLR 851. The interests of justice test is broad textured and requires a careful assessment of what justice requires. The tribunal has a wide discretion; but dealing with cases justly requires that they be dealt with in accordance with recognised principles (paragraph 32 per Bean LJ). An application for reconsideration must include the weighing of the injustice to the applicant if the application is refused against the injustice to the respondent if it is granted, also giving weight to the public interest in the finality of litigation (paragraph 36, per Bean LJ).
The questions raised by this ground of appeal are whether the Tribunal erred in law by failing to carry out the appropriate exercise of determining where the interests of justice lay, or whether in carrying out that inquiry it reached a decision that was outside the permissible exercise of discretion, i.e. a perverse decision.
Having carefully considered the Tribunal’s reasons, in my judgment the Tribunal erred in failing to carry out an assessment of whether it was necessary in the interests of justice to reconsider its decision. The reasons for the reconsideration decision are at paragraph 3. The Tribunal accepted that Ms Jones was correct in her argument that the claim under s.27(1)(b) was not pleaded. It then said “We accordingly reconsidered our initial judgment in accordance with Rule 70 of the Employment Tribunals Rules of Procedure 2013, it being necessary in the interests of justice to do so”. It varied its decision so as to dismiss the claim as the pleaded claim had failed.
At paragraph 46 of the reasons, the Tribunal further held that it would be wrong in law to decide a case on the basis of an unpleaded issue, and that it must determine the victimisation claim solely as one brought on the basis of section 27(1)(a). At paragraph 51 of the reasons, it held that because the s.27(1)(a) claim had failed, and because there was no pleaded case under s.27(1)(b) “the victimisation claim must fail.”
In the Tribunal’s reasoning, therefore, the decision that the s.27(1)(b) claim was not pleaded was conclusive of the question of whether it was in the interests of justice to reconsider the claim. Further, having decided to reconsider its decision, it simply substituted its original decision with a decision to dismissal the claim. It did not consider whether to take the decision again and did not consider whether to allow an amendment to the claim in doing so. It gave the Claimant, a litigant in person, no opportunity to apply to amend. It gave no consideration to the fact that the s.s27(1)(b) claim arose from essentially the same pleaded facts as the s.27(1)(a) claim and was very closely related to it, as I have set out above. Ms Jones’ reconsideration application was based, it appears to me, purely on a technical pleading point. I do not understand it to have been said that the Respondent had not had a fair opportunity to call relevant evidence or otherwise to address the case. There appears to have been no consideration by the Tribunal to whether it would have been in the interests of justice to allow its initial decision to stand in those circumstances.
In short, there was no proper consideration of whether it was in the interests of justice that the Tribunal’s decision should be varied and the claim dismissed. Consideration of the interests of justice required a broader consideration of the circumstances of the case than the single question of whether the s.27(1)(b) had been pleaded or not. If there was such consideration, it is not spelt out in the reasons, and the Tribunal’s conclusion was in any event outside the scope of the permissible exercise of discretion.
The flaw in the Tribunal’s reasoning is made plain by the fact that the Tribunal did not resile from the factual findings that were sufficient to make out the s.27(1)(b) claim. At paragraph 52 it said:
“The Claimant may consider this to be a harsh result in light of our factual findings at paragraph 28 above. However, we are bound by law to consider only matters that are pleaded. We note that although the claimant did apply to amend his claim on three occasions, none of those applications identified a claim of this nature. Whilst the claimant may be able to draw some degree of vindication from the factual findings we have made, because his pleaded case has failed, the complaint of victimisation must be dismissed.”
It is clear therefore, that the Tribunal’s reasoning was not that as the claim was not pleaded the Respondent had not had a fair chance to address it and as a result the initial findings of fact could not stand. On the contrary, it effectively restated the findings of fact which contained all the essential ingredients of the claim.
Directing itself properly, the Tribunal should have considered whether the s.27(1)(b) claim was so closely linked to the s.27(1)(a) claim that in the circumstances it was in the interests of justice for its initial decision to stand, allowing an amendment if it felt it necessary to do so. If it had considered that question, in my judgment the only proper conclusion would have been to let the initial judgment stand.
Ms Jones argued that fairness did not require the Tribunal to read the Claimant’s pleaded case more widely or to consider whether to permit the Claimant to amend his claim. She relied on four points:
There was no new evidence of the decision-making process that emerged during the hearing.
The Claimant had the relevant email from Mr Tigreros in his possession prior to presenting his claim, was professionally represented when the claim was pleaded.
The Claimant had made three amendment applications, none of which raised the argument under s.27(1)(b).
In January 2022, prior to the preliminary hearing where he abandoned his amendment applications, the Claimant succeeded in another Tribunal claim on the basis of s.27(1)(b).
Those points are all correct as a matter of fact. They all contribute to an argument that the Claimant could, and should, have applied at an earlier stage to amend his claim to rely on s.27(1)(b) if he wanted to pursue that claim. I can see that points of this kind may have considerable force in the context of a late amendment application of any significant scope.
However, in this case they are of little or no weight, because the amendment that the Claimant would have needed to make was so small, and would have made no difference to the facts relied on or the scope of the evidence.
Ms Jones did not suggest before the Tribunal, nor did she suggest in the hearing before me, that if the claim had been amended to include the s.27(1)(b) point the Respondent would have wanted to call any different evidence.
Indeed, it was apparent from the way the Grounds of Complaint was pleaded that Mr Tigreros’ email of 12 June 2019, and what Mr Tigreros’ reasoning was, was going to be a key plank in the Claimant’s case – the Claimant quoted it twice in the pleading. Yet the Respondent chose not to call him.
Further, the Respondent does challenge the factual findings of the Tribunal in its initial decision. In its Skeleton Argument for this appeal at paragraph 18, the Respondent relies on the Tribunal’s finding at paragraph 28 of the Reasons: “the ET concluded that the “future” issues” the Respondent sought to avoid were a complaint or claim of race discrimination. The Respondent again submits that this is a finding of fact which the ET was entitled to reach, and it is one that the EAT cannot and should not interfere with.” I agree, but this is a finding of fact which supports the Claimant’s claim - as found by the Tribunal in its initial decision.
No tribunal properly directing itself could have held that it was in the interests of justice to reconsider its initial decision and dismiss the claim, given its unchallenged findings of fact.
Other Grounds of Appeal
The Appellant, in his Skeleton Argument raises a number of points that go beyond the scope of the grounds which Mr Ford KC allowed to proceed to his hearing. For instance, he asks for the findings of race discrimination to be revisited. I have not considered any point that is outside the scope of the grounds for which Mr Ford KC gave permission. In fairness to Mr Aslam, he did not press any of those points at the hearing of the appeal.
DISPOSAL
For the reasons set out above, I allow the appeal. In its reconsideration decision, the Tribunal erred in holding that the claim which it upheld in its initial decision was outside the scope of the pleaded case. Even if the claim had been strictly outside the scope of the pleading, it was very closely related to the pleaded case and required no different or additional evidence to determine it. The Tribunal erred in dismissing the claim on reconsideration, rather than allowing the claim to proceed (with amendment if necessary) and affirming its decision. I revoke the reconsideration decision and reinstate the Tribunal’s initial judgment, i.e. that the claim of victimisation succeeds. The claim will be remitted to the Tribunal for determination of remedy.