Barts Health Trust v Kensington-Oloye

An agreed list of issues will generally define the issues for determination at an Employment Tribunal hearing. It is not immutable, but a tribunal must not decide a new allegation revealed by evidence without addressing amendment and procedural fairness.

Where a new issue is to be raised, the tribunal should identify the proposed amendment, allow the other party to respond, and consider whether further evidence or submissions are required. A finding of direct discrimination must address whether the alleged decision-maker treated the claimant less favourably than an appropriate comparator.

The claimant brought claims of direct race discrimination and harassment. The Employment Tribunal rejected all but one narrow allegation. It held that a human-resources officer had unlawfully discriminated by providing the grievance investigator with only one of four grievance documents.

The employer appealed. It contended that this allegation was outside the ET1 and agreed list of issues, which concerned the investigator's conduct. It also challenged the reasoning on less favourable treatment. The central issue was whether the tribunal could determine that unpleaded allegation without an amendment or a fair opportunity for the employer to address it.

1. Appeal allowed. The finding of unlawful race discrimination was set aside. The agreed list of issues, expressly incorporated into the case-management order, generally confined the hearing to the listed matters.
2. Issue 11 concerned criticism of the investigator, Miss Tomes, including her treatment of evidence and her report. It did not allege that Miss McCrindle, a human-resources officer, had failed to provide grievance documents. Nor did the ET1 give the employer fair notice of that specific allegation. It was therefore unsurprising that Miss McCrindle had not been called.
3. Evidence emerging during the hearing could have justified an application to amend. Before deciding such a new issue, however, the tribunal had to consider the proposed amendment and procedural fairness. That required a proper opportunity for both parties to address the amendment and, if appropriate, an opportunity to call Miss McCrindle. The tribunal instead decided the point without that process.
4. The tribunal's reasoning on less favourable treatment was also defective. The material question was whether Miss McCrindle would, in like circumstances, have supplied only one document in another case. The tribunal did not make that comparison. In any event, if the alleged omission was motivated by the documents' containing a complaint of race discrimination, the possible claim was victimisation rather than direct race discrimination.
5. Under the Employment Appeal Tribunal Rules 1993, the successful employer was ordered to recover its £1,600 appeal fees. The claimant's asserted debts did not make that order disproportionate, given her net monthly income.

• Employment Appeal Tribunal: allowed the employer's appeal and set aside the Employment Tribunal's sole finding of direct race discrimination.
• Employment Tribunal, London (Central): judgment dated 16 December 2013. The claimant's direct race discrimination and harassment claims were rejected except for one finding concerning the provision of grievance documents.