EAT Race Discrimination – Victimisation Discrimination – Detriment – PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
The issue raised by the appeal was whether the Employment Tribunal had dealt with all aspects of the Claimant’s case before it. This, in turn, raised two questions: (1) how had the Claimant’s case before the Employment Tribunal been put? and (2) had that case been determined by the Employment Tribunal?
Held: dismissing the appeal, the point in issue (that the Respondent’s setting too narrow a remit for its investigation, or Mr Lewis, wrongly so interpreting his remit, was itself an act of race discrimination or victimisation) was not a clear part of the case pursued by the Claimant before the Employment Tribunal, although it had been foreshadowed in her ET1 and witness statement and she had not withdrawn the issue. On the basis that it was a point still ‘live’ before the Employment Tribunal: ultimately, however, the Employment Tribunal’s conclusions meant that the Claimant could not have succeeded on this issue in any event. The Employment Tribunal had considered the ‘reason why’ and had expressly found that it was ‘in no sense whatsoever, even on a sub-conscious level, because of the claimant’s race, any other racial ground or any past or anticipated protected act.’ Although the Employment Tribunal may not have understood that the Claimant was still pursuing every nuance of her pleaded case, that finding was sufficient to answer the issue raised on the appeal in any event.
Eady QC HHJ
[2015] UKEAT 0177 – 14 – 0302
Bailii
England and Wales
Employment, Discrimination
Updated: 30 December 2021; Ref: scu.547607