Amin v Wincanton Group Ltd

A distinction must be drawn between failing to plead a discrimination complaint and failing to provide adequate particulars. The former limits the Employment Tribunal’s jurisdiction. The latter concerns the definition and management of issues and may justify an order for further particulars or strike-out, but does not itself remove jurisdiction.

Where an originating application contains a sufficiently intelligible allegation that dismissal was discriminatory, the complaint is pleaded even if later particulars omit the allegation. The Tribunal should not determine an important issue solely by a pleading point where the respondent has understood the case and suffers no material prejudice. The appropriate procedural remedy for inadequate particulars is ordinarily to enforce the relevant order, including by strike-out where justified.

The claimant, a Muslim of Pakistani origin, appealed against an Employment Tribunal decision concerning unfair dismissal, unlawful deduction from wages and race discrimination. The Tribunal awarded £419.25 for unlawful deduction from wages but declined jurisdiction over the alleged discriminatory dismissal.

It held that the dismissal had not been pleaded and that other discrimination complaints were out of time or barred by the absence of a grievance under Employment Act 2008, section 32. The claimant’s ET1 stated, under discrimination, that managers had tricked him into conduct leading to discipline and dismissal. However, his later Further and Better Particulars did not expressly identify the dismissal as discriminatory.

The central issue was whether the omission from the particulars deprived the Tribunal of jurisdiction.

1. Appeal allowed. The Employment Tribunal had jurisdiction to entertain the complaint that the claimant’s dismissal was racially discriminatory. That complaint was remitted to a fresh Employment Tribunal for hearing.
2. The function of particulars is to limit and define the issues, inform the respondent of the case to be met and avoid surprise. Particulars may narrow a general pleading, but inadequate particulars do not necessarily extinguish a complaint that was already pleaded.
3. The ET1, read as a whole, contained an allegation that the claimant had been tricked by managers into conduct which led to his being disciplined and dismissed as an act of discrimination. The Employment Tribunal therefore erred in finding that discriminatory dismissal had not been pleaded.
4. Chapman v Simon and Ahuja v Inghams concerned complaints where the disputed discriminatory acts had not been pleaded at all. Those authorities were distinguishable. Failure to plead goes to jurisdiction; failure to comply with an order for Further and Better Particulars does not. The respondent’s remedy was to seek enforcement of the order or strike-out for non-compliance.
5. The absence of a grievance was relevant to the other discrimination complaints, but there was no obligation to lodge such a grievance in relation to a racially motivated unfair-dismissal claim. The withdrawal of the other discrimination claims did not affect the discriminatory-dismissal complaint.
6. A fresh Tribunal was appropriate because the claimant might reasonably consider that the original Tribunal’s findings on the other discrimination complaints could affect its ability to approach the remaining issue with a fresh mind, applying the concern identified in Sinclair Roche & Temperley v Heard.

• Employment Tribunal, Liverpool: Judgment dated 20 April 2010, with Reasons dated 3 August 2010. The Tribunal awarded £419.25 for unlawful deduction from wages and declined jurisdiction over the discrimination complaints, including the alleged discriminatory dismissal.
• Employment Appeal Tribunal: Appeal allowed. The complaint concerning discriminatory dismissal was held to have been pleaded and was remitted to a fresh Tribunal.