Akinmolasire v Camden and Islington Mental Health NHS Trust

An Employment Tribunal hearing a discrimination complaint must decide the specific act identified in the originating application and may grant relief only for that act. It cannot substitute a different act of discrimination which was neither pleaded nor identified during subsequent case management. References to earlier complaints may provide background, but do not convert a finding expressly directed to a later, discrete failure to investigate into a finding about earlier conduct. The Court of Appeal applied Chapman v Simon [1994] IRLR 124 and upheld the setting aside of the award.

The Employment Tribunal found one complaint of race discrimination proved and awarded the appellant £2,240, while dismissing her other complaints. Its finding concerned the respondent Trust’s alleged failure to investigate a complaint made at an extended probationary review meeting on 22 and 23 October 2001. The Employment Appeal Tribunal allowed the Trust’s appeal, observing that no such complaint appeared in the originating application, directions proceedings or particulars, and that the Trust was entitled to be surprised.

The appellant appealed to the Court of Appeal. She argued that the Employment Tribunal’s finding was, in substance, concerned with earlier complaints made between March and July 2001. The central issue was whether the finding could properly be treated as relating to that earlier pleaded conduct rather than to the later failure to investigate.

1. Disposition. The Court of Appeal unanimously dismissed the appellant’s appeal. The Employment Tribunal’s finding in her favour and the resulting award could not stand.
2. Scope of the complaint. Under section 54 of the Race Relations Act 1976, as explained in Chapman v Simon [1994] IRLR 124, a tribunal must determine the act of discrimination identified in the complaint. It cannot find a different act of discrimination which was not complained of and award a remedy in respect of it. The appellant did not challenge the applicability of that principle.
3. Construction of the Employment Tribunal’s reasons. Paragraph 44 of the Employment Tribunal’s reasons was a specific and discrete finding about the alleged failure to investigate the complaint made at the October review meeting. The references to complaints made between March and July were treated as background. The reference to a continuing act under section 68(7) and section 68(7)(b), together with the alternative reliance on the just-and-equitable discretion under section 68(6), addressed whether the October failure was within time. They did not convert the finding into one about earlier conduct.
4. Procedural fairness and remedy. The originating application, directions proceedings and further particulars contained no case based on a complaint made at the October meeting, and no amendment had been sought. The respondent was therefore entitled to be surprised by the Employment Tribunal’s decision. Although the appellant had appeared in person and expressed sympathy, the omission did not produce a denial of justice. There was no basis for remitting the wider matter to a differently constituted tribunal, particularly as there had been no cross-appeal against the dismissal of the other complaints.

• Court of Appeal (Civil Division) [2004] EWCA Civ 1351: dismissed the appellant’s appeal and held that the Employment Tribunal’s finding and award could not stand.
• Employment Appeal Tribunal: allowed the respondent Trust’s appeal against the Employment Tribunal’s decision in the appellant’s favour. The decision was sent to the parties on 10 November 2003.
• Employment Tribunal: on 14 February 2003, upheld one complaint of race discrimination concerning failure to investigate and awarded £2,240, while dismissing the other complaints.