United Learning Trust v Rose

An Employment Tribunal must determine direct-discrimination complaints as clearly defined by the claimant. It must not recast background material, narrative or a general complaint as a distinct allegation of less favourable treatment without fair notice to the respondent.

By the hearing, the particular acts said to constitute discrimination must be identified with sufficient precision to permit informed decisions about evidence, cross-examination and submissions. A finding on an unpleaded and unargued act is procedurally unfair and cannot stand.

The claimant, a science teacher, brought claims including direct race discrimination. The Employment Tribunal rejected her discrimination allegations except for a finding that the employer had discriminated by failing to reply to her email of 10 November 2009 concerning a lesson observation.

The employer appealed against that sole adverse finding. It contended that non-reply to the email had not been advanced as a discrete allegation of race discrimination in the particulars or agreed list of issues, and that the Tribunal had also erred in its burden-of-proof reasoning.

The central issue was whether the Tribunal could treat the failure to reply as an allegation of direct race discrimination and determine it despite its absence from the defined issues.

1. Appeal allowed. The finding of unlawful race discrimination based on the failure to reply to the email was set aside.

2. The agreed issue concerned unfair observation and criticism of teaching, including the opportunity for follow-up sessions. It did not concern a failure to reply to an email. The Tribunal therefore acted impermissibly in treating the latter matter as encompassed by that issue.

3. The email allegation had not been properly or sufficiently advanced as an act of race discrimination. Although the particulars recorded that no response was received, they did not identify it as inconsistent or less favourable treatment on racial grounds. The claimant's counsel did not include it in the list of issues, cross-examine upon it, or make closing submissions upon it.

4. Fairness requires that, by the hearing, the specific acts alleged to amount to direct discrimination are clear. That enables each party to decide what evidence to call and what submissions to make, and enables the Tribunal to decide the actual issues. Applying British Gas Services Ltd v McCaull [2001] IRLR 60, a Tribunal should address complaints as defined by the applicant, rather than identify a different act or omission as less favourable treatment.

5. Had the allegation been properly raised, the employer could have explored the evidence of the manager who did not reply and considered calling the manager who advised against a reply. It was unnecessary to analyse the Tribunal's burden-of-proof reasoning under the Race Relations Act 1976, because the issue was never properly before it.

• Employment Appeal Tribunal: Allowed the employer's appeal and set aside the sole finding of direct race discrimination.
• Employment Tribunal, London South: Judgment dated 17 January 2012. It rejected the claimant's other race-discrimination allegations but upheld a complaint based on failure to reply to an email.