Mumtaz Food Industries Ltd v Javed

An Employment Tribunal must determine a disability-discrimination claim on the legal basis pleaded and addressed by the parties. It is an error of law, and may breach procedural fairness, to uphold a claim of disability-related discrimination where the pleaded and argued claim was direct disability discrimination.

Under the Disability Discrimination Act 1995, direct discrimination under section 3A(5) differs from disability-related discrimination under section 3A(1). The latter permits justification; the former does not. The distinction may affect the evidence, arguments and defence available to the employer.

On a remission, unreasonable conduct alone does not transfer the burden of proof, and facts which could indicate discrimination require more before that burden shifts.

The claimant, a production manager, was dismissed after the employer alleged that he had inaccurately completed a health questionnaire. The Employment Tribunal found the dismissal unfair and held that the employer had discriminated against him on grounds connected with his disability. The employer did not challenge the unfair-dismissal finding.

On appeal, the employer contended that the Tribunal had decided a disability-related discrimination claim although the claimant had particularised, and the parties had argued, direct disability discrimination only. The central issue was whether that departure from the pleaded case was a material error of law and, if so, the appropriate remission.

1. The appeal was allowed. The Employment Tribunal's disability-discrimination decision was set aside and the claim was remitted to the same Tribunal for reconsideration as a disability-related discrimination claim.

2. The claimant's ordered particulars were headed “Direct Discrimination” and alleged dismissal because of disability. Read sensibly and with that unambiguous heading, they pleaded a claim under section 3A(5) of the Disability Discrimination Act 1995, not a claim under section 3A(1). The Tribunal nevertheless decided the case as one of disability-related discrimination.

3. That was material. Direct discrimination requires treatment on the ground of disability and admits no justification defence. Disability-related discrimination concerns treatment for a reason related to disability and permits justification. The employer was entitled to notice that it had to meet the latter claim, to adduce and address the relevant evidence, and to advance justification if available.

4. The Tribunal therefore determined a claim which had neither been pleaded nor addressed. Applying the procedural-fairness principle in British Gas Services Ltd v McCaull, [2001] IRLR 60, its decision could not stand.

5. Remission to the same Tribunal was appropriate. It had already made detailed factual findings after a three-day hearing, and there was no reason to doubt its ability to determine the remitted claim fairly and according to law. The EAT added non-binding guidance that unreasonable behaviour alone does not shift the burden of proof, and that facts which could indicate discrimination require more, consistently with Madarassy v Nomura International Plc, [2007] ICR 867.

• Employment Appeal Tribunal: Allowed the employer's appeal against the disability-discrimination finding and remitted that claim to the same Employment Tribunal.
• Employment Tribunal (Leeds): In a judgment sent to the parties on 26 April 2012, upheld the claimant's unfair-dismissal and disability-discrimination claims. The unfair-dismissal finding was not challenged on appeal.