Practice and procedure – claim – whether ET failed to address all claims made by the Claimant
The Claimant had made a complaint of race discrimination against the Respondent, relating to a recruitment exercise in January 2018. At a case management Preliminary Hearing, the ET identified the Claimant’s claims to be limited to two acts (both occurring on 4 January 2018): (1) the removal of his name from the list of candidates; and (2) the Respondent’s failure to expressly invite him to attend the interview day. The Claimant did not dissent from the ET’s list of issues and never asked for it to be amended. At the Full Merits Hearing, the ET accepted the Respondent’s explanation for both (1) and (2) and dismissed the Claimant’s claim. The Claimant applied for a reconsideration of the decision but that was refused. The Claimant appealed.
At a Rule 3(10) hearing, the EAT dismissed the grounds of challenge set out in the Claimant’s Notice of Appeal but was persuaded (pursuant to the submissions of an ELAAS representative assisting the Claimant that day) to permit a new, amended, Ground to proceed to a Full Hearing. By the amended ground, it was argued that the ET had erred in law by failing to identify and determine a further claim of race discrimination made by the Claimant, relating to the Respondent’s treatment of him when he attended the interview day on 5 January 2018 and its failure to offer him a position after his interview.
Held: dismissing the appeal
The ET had not erred in determining the claim before it. Although the Claimant’s Particulars of Claim had described the events of 5 January 2018, he had not suggested that these gave rise to additional grounds of claim; on the contrary, the Claimant had expressly stated that the act of race discrimination had occurred on 4 January 2018 (when the Respondent removed his name from the list of candidates and failed to invite him for interview); the Claimant’s description of events of 5 January 2018 simply provided further context, it did not identify any further alleged acts of race discrimination. This was consistent with the Claimant’s pre-action correspondence, in which he had expressly disavowed the suggestion that he was complaining of the failure to offer him a position, and made clear that his complaint related to what had happened on 4 January 2018. There was no error in the identification of the issues at the ET case management Preliminary Hearing or in the ET proceeding on the basis of that list of issues at the Full Merits Hearing: no further matter of complaint shouted out from the Particulars of Claim in this case, which was distinguishable from Mervyn v BW Controls Ltd [2000] EWCA Civ 393. It was also relevant that the Claimant had not suggested that the ET had failed to deal with any aspect of his claim in his application for reconsideration and had not addressed this point in his Skeleton Argument for the Full Hearing of his appeal. As the Claimant volunteered in oral submissions, the point raised by the amended Ground of Appeal had been identified for the first time by ELAAS counsel assisting the Claimant at the Rule 3(10) hearing.
It was not the role of the ET to seek to identify possible further claims for the Claimant arising out of events on 5 January 2018, when he had never sought to suggest that those events constituted acts of race discrimination, and it had not erred in law in determining the case the Claimant had pursued before it.
Citations:
[2021] UKEAT 0121 – 20 – 1901
Links:
Jurisdiction:
England and Wales
Employment
Updated: 25 November 2022; Ref: scu.661686
