Northumberland County Council v Trebillcock

An Employment Tribunal may determine only claims that have been properly articulated. A pleading alleging indirect sex discrimination and unfavourable treatment because of pregnancy or pregnancy-related illness does not, without more, advance a claim under section 18(4) of the Equality Act 2010 for treatment because of exercising maternity-leave rights.

Under rule 25 of the Employment Tribunal Rules of Procedure 2004, a written withdrawal must clearly, unequivocally and unambiguously withdraw a claim that has in fact been made. A response stating that no claim is made in a specified respect is not a withdrawal.

The claimant brought claims of constructive dismissal and unlawful discrimination after a redundancy-selection process during maternity leave. Her pleaded case alleged indirect sex discrimination and unfavourable treatment because of pregnancy or pregnancy-related illness.

During the Employment Tribunal hearing, the Tribunal raised the possible relevance of section 18(4) of the Equality Act 2010. The Council submitted that such a claim had been withdrawn by the claimant’s response to an earlier request for further information. The Tribunal rejected that submission and proposed to proceed on the basis that a section 18(4) claim was before it.

The Council appealed. The central issues were whether the claimant had ever made a section 18(4) claim and, if so, whether her response had withdrawn it under rule 25.

1. Appeal allowed in part. The Employment Tribunal erred in proceeding on the footing that a claim under section 18(4) of the Equality Act 2010 was before it. The EAT declared that no such claim had been made.

2. The claim form and grounds identified two possible causes of action: indirect sex discrimination under section 19, and unfavourable treatment because of pregnancy or pregnancy-related illness under section 18(2). They did not allege, with the necessary specificity, unfavourable treatment because the claimant had exercised or sought to exercise a right to ordinary or additional maternity leave under section 18(4).

3. The claimant’s answer to the request for further information confirmed that conclusion in respect of additional maternity leave. It stated that no claim was brought on that basis. A claim under section 18(4) might have been appropriate, but it would have required an amendment. The Tribunal could adjudicate only a claim properly made before it.

4. Although unnecessary to the result, the EAT held that the answer was not a withdrawal. Rule 25(2) of the Employment Tribunal Rules of Procedure 2004 concerns a clear, unequivocal and unambiguous withdrawal of a claim already made. The response did not purport to withdraw a claim; it said that no such claim was being advanced.

5. The appeal was dismissed in other respects. The matter was remitted to a freshly constituted Employment Tribunal. The claimant remained free to seek permission to amend, to be determined by that Tribunal under the Selkent principles.

• Employment Appeal Tribunal: allowed the Council’s appeal to the extent of declaring that no claim under section 18(4) of the Equality Act 2010 had been made; otherwise dismissed the appeal and remitted the proceedings to a freshly constituted Employment Tribunal.
• Employment Tribunal, Newcastle: held that the claimant had not withdrawn a section 18(4) claim and intended to proceed on the basis that such a claim was before it.