Northumberland County Council v Trebillcock

An Employment Tribunal may determine only claims that have been properly made and placed before it. A pleading alleging indirect sex discrimination and unfavourable treatment because of pregnancy or pregnancy-related illness does not, without more, articulate a claim under section 18(4) of the Equality Act 2010.

A written withdrawal under rule 25(2) of the Employment Tribunal Rules of Procedure 2004 must clearly, unequivocally and unambiguously withdraw a claim already made. A response stating that no claim is brought on a particular basis is not, without language purporting to withdraw it, a withdrawal.

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

At the hearing, the Employment Tribunal considered that a claim under section 18(4) of the Equality Act 2010, concerning treatment because of the exercise or proposed exercise of maternity leave rights, was before it. The Council contended that the claimant had withdrawn such a claim by answering a request for further information with words incorporating her statement that she brought no claim under regulation 10 of the Maternity and Parental Leave Regulations 1999.

The appeal concerned whether a section 18(4) claim had ever been made and, if so, whether it had been withdrawn under rule 25.

1. Appeal allowed in part. The Tribunal erred in proceeding on the basis that a claim under section 18(4) of the Equality Act 2010 was before it. The pleadings articulated a claim of indirect sex discrimination and a claim of 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 ordinary or additional maternity leave rights.

2. The Employment Tribunal could adjudicate only claims properly made and placed before it. References in the pleaded case that might have suggested a section 18(4) claim did not constitute such a claim. The claimant’s answer to the request for further information confirmed, at least concerning additional maternity leave, that no such claim had been intended or made. An amendment would have been required to introduce it.

3. Although not necessary to the result, the response did not amount to a withdrawal under rule 25(2) of the Employment Tribunal Rules of Procedure 2004. Rule 25 concerns a clear, unequivocal and unambiguous withdrawal of a claim already made. The response merely stated that a section 18(4) claim was not being advanced; it did not purport to withdraw one.

4. The EAT declared that no section 18(4) claim was before the Tribunal and otherwise dismissed the appeal. The matter was remitted to a freshly constituted Tribunal. Any application to amend remained for that Tribunal to determine under the Selkent principles.

• Employment Appeal Tribunal: Allowed the Council’s appeal to the extent of declaring that no section 18(4) claim was before the Employment Tribunal; otherwise dismissed the appeal and remitted the matter to a freshly constituted Tribunal.
• Employment Tribunal, Newcastle: Had ruled that a section 18(4) claim under the Equality Act 2010 was before it and intended to proceed on that basis. The citation of that ruling was not stated in the judgment.