Horlorku v Liverpool City Council

An Employment Tribunal must determine the dispute which the parties put before it. A claim must ordinarily remain within the pleadings, but the Tribunal need not determine every factual or legal allegation capable of being drawn from an ET1 where the parties have agreed and refined the issues for decision during the hearing.

In discrimination claims, the Tribunal must consider the whole evidential picture and remain alert to inferences from a course of conduct. A concise judgment is sufficient where it shows that the Tribunal considered that overall picture and made findings that each material incident had a genuine, non-discriminatory explanation.

The Claimant, a Black African Community Cohesion Support Officer, was placed in a redeployment pool during a restructuring and was later dismissed for redundancy. He brought claims of unfair dismissal, direct race discrimination, harassment and victimisation.

The Employment Tribunal dismissed all claims in a reserved judgment dated 10 March 2014. Its agreed list of issues confined direct discrimination to the Claimant's placement in the redeployment pool, identified one victimisation allegation, and identified four harassment allegations.

On appeal, the Claimant contended that the Tribunal had failed to determine further direct-discrimination allegations arising from his ET1 and witness statement, had failed to consider the allegations cumulatively, and had erred concerning time limits under the Equality Act 2010.

1. Appeal dismissed. The Employment Tribunal was entitled to decide the issues which the parties had agreed, rehearsed and revised during the hearing. The evidence established that the list recorded in its judgment was the agreed list of outstanding issues.

2. A Tribunal's procedure is accusatorial. It resolves the dispute advanced by the parties and does not construct a factual case for either side. A matter ordinarily cannot be advanced outside the pleadings, unless the parties agree otherwise. That limitation does not require the Tribunal to decide every matter which might arguably fall within the pleadings. It need decide the issues actually left for resolution.

3. The rule that a concession or withdrawal must be clear, unequivocal and unambiguous did not assist the Claimant. This was not a case of an apparent concession of a defined issue. The parties had instead agreed the issues to be determined at the conclusion of the hearing.

4. A Tribunal considering discrimination must examine the whole circumstances and be alert to inferences which may arise from the overall course of dealings. It must not isolate individual incidents so completely that it misses the significance of the wider picture.

5. The Tribunal's brief references to treatment throughout the redeployment period, and to the overall fairness and reasonableness of management's actions, sufficiently showed that it had considered the wider picture. Its finding of a genuine non-discriminatory reason for every incident also meant that the accumulation of complaints could not strengthen the discrimination claim. Any incomplete treatment of time limits under section 123 of the Equality Act 2010 was therefore immaterial because the claims failed on their merits.

• Employment Appeal Tribunal: appeal dismissed. The Tribunal upheld the Employment Tribunal's dismissal of the claims.
• Employment Tribunal at Liverpool: in a reserved judgment dated 10 March 2014, dismissed claims of unfair dismissal, direct race discrimination, harassment and victimisation.