Purohit v Hospira UK Ltd

An employer must have a reasonable opportunity to investigate an allegation before an employment claim alleging failure to investigate can properly crystallise. Issuing proceedings before that opportunity has been allowed may be unreasonable and may justify a costs order, although costs remain exceptional in the Employment Tribunal. A victimisation claim requires a protected act within section 2 of the Race Relations Act; merely attending another person’s disciplinary meeting is not such an act. Claims based on matters not properly advanced in the claim form cannot ordinarily be pursued. Appellate courts should be slow to interfere with case-management decisions and exercises of discretion.

The Claimant appealed against interim decisions of Employment Judge Ryan concerning claims arising from an offensive text message, alleged victimisation and alleged harassment involving a co-worker. Part of the claim concerning the Respondent’s investigation was struck out or later dismissed, and costs of £2,000 were awarded for issuing that claim prematurely. The victimisation and harassment allegations were also struck out. The appeal concerned whether the investigation claim was premature, whether the victimisation allegation disclosed a protected act, and whether the harassment allegation was supported by the pleaded case and factual findings.

The appeal was heard by the Employment Appeal Tribunal sitting alone.

1. Investigation claim and costs. The Respondent had not refused to investigate. It had offered the Claimant an opportunity to raise a formal grievance and had arranged a disciplinary investigation in which she could participate as a witness. The Employment Judge was entitled to conclude that proceedings issued before the relevant meeting were premature. A reasonable opportunity to investigate had not yet elapsed, and no actionable discrimination had crystallised at that stage (paras [9]–[11]).
2. The £2,000 costs order was a permissible exercise of discretion under rule 40. Costs are rare in the Employment Tribunal, but the Employment Judge had considered the circumstances carefully. The appellate tribunal would not interfere with that discretionary decision, applying the approach in Barnsley Metropolitan Borough Council v Yerrakalva, Dean & Dean and Arrowsmith (para [12]).
3. Victimisation. A victimisation claim requires a protected act and treatment because of that act. Bringing proceedings or giving evidence under the Race Relations Act may constitute a protected act, but attendance as a workplace representative at a husband’s disciplinary meeting, where he allegedly referred to discrimination, could not do so. The Judge was therefore entitled to strike out the allegation. The claim also faced difficulties because it was not adequately pleaded and was substantially out of time (paras [14]–[18]).
4. Harassment and working arrangements. The factual findings did not establish that the Claimant had asked for the co-worker to be removed. The meeting relied upon was not shown to constitute harassment, and the allegation was not made in the claim form. The Employment Judge was correct to reject those grounds (paras [19]–[22]).
5. The appeal was dismissed. Permission to appeal to the Court of Appeal was refused because the proposed appeal had no reasonable prospect of success and there was no compelling reason for further consideration (paras [23]–[24]).

• Employment Appeal Tribunal: Appeal against interim decisions of Employment Judge Ryan dismissed. Permission to appeal to the Court of Appeal refused.
• Earlier proceedings: The judgment records that later proceedings before Employment Judge Bedeau and members resulted in dismissal of the Claimant’s grounds, with permission to appeal refused by the Court of Appeal.