Durrani v London Borough of Ealing

A complaint is a protected act for victimisation only if, viewed in its context, it is capable of being understood as alleging conduct prohibited by the relevant equality legislation. An employee need not use the word race or identify a protected characteristic expressly. However, a complaint of general unfair treatment, where the employee has disavowed discrimination based on ethnicity or another protected characteristic, is insufficient.

A tribunal decision must be read as a whole. Its failure to analyse direct discrimination, harassment and victimisation under separate headings is not an error of law if its findings and reasons plainly determine each claim. A new TUPE point requiring further factual findings will ordinarily not be entertained for the first time on appeal.

The claimant, a British man of Pakistani origin, brought Employment Tribunal claims arising from his employment with Ealing Homes and his dismissal for redundancy. He alleged, among other matters, race discrimination, harassment and victimisation. The Tribunal struck out the race claims as having no reasonable prospect of success and discharged the London Borough of Ealing from the proceedings.

On appeal, the claimant contended that the Tribunal had failed separately to address victimisation. He also advanced a new argument that Ealing was liable under TUPE for discriminatory acts allegedly committed by a manager whose employment had later transferred from Ealing Homes to Ealing. The central issues were whether his earlier complaints were protected acts and whether the new TUPE argument could be raised on appeal.

1. Appeal dismissed. The Tribunal was entitled to conclude that the claimant had no reasonable prospect of succeeding in a victimisation claim.
2. Victimisation under section 27 of the Equality Act 2010 requires a detriment caused by a protected act. The protected act must concern conduct falling, or potentially falling, within the relevant equality legislation. The same conclusion followed under section 2 of the Race Relations Act 1976.
3. The claimant's use of the term discrimination did not, on the facts found, amount to a complaint of race discrimination. When invited to identify the basis of his complaint, he explained that he meant unfair treatment arising from the employer's belief that he had committed misconduct. He did not attribute the treatment to his Pakistani origin or to another protected characteristic. The Tribunal could therefore conclude that later detriment could not amount to statutory victimisation for a race-discrimination complaint.
4. The Tribunal should ideally have addressed direct discrimination, harassment and victimisation separately. Nevertheless, its decision, read as a whole, made clear why each race claim failed. Its reasons met the standard in Meek v City of Birmingham District Council [1987] IRLR 250 and rule 30(6) of the Employment Tribunal Rules.
5. The proposed argument that Ealing inherited liability for another employee's alleged discriminatory acts following a TUPE transfer was not raised below. It depended on further findings concerning the alleged acts, the employee's transfer and any organised grouping. Applying the exceptional-circumstances approach to new points on appeal, the EAT declined to determine the interesting TUPE issue. The unchallenged finding that the claimant's own dismissal was caused by redundancy rather than a transfer also stood, so Ealing incurred no direct liability to him at the relevant time.

• Employment Appeal Tribunal: appeal dismissed.
• Employment Tribunal: in reasons delivered on 19 July 2012, struck out the race-discrimination claims as having no reasonable prospect of success and discharged the London Borough of Ealing from the proceedings.