Adebowale v Isban UK Ltd & Ors

An Employment Tribunal must not treat a claim pleaded in an ET1 as abandoned merely because it is not repeated in ordered particulars, without addressing that issue. An ET1 should be construed in a practical way, having regard to its intended readers and whether it was lawyer-drafted.

Race discrimination and harassment allegations should not be struck out where their prospects depend on contested facts and inferences and the Tribunal has not properly considered their wider alleged context. Whether a worker is a contract worker under section 41 requires a careful factual evaluation; work may be done for both the employer and the principal.

The Appellant alleged racial discrimination and harassment during his employment with the first Respondent. Following a preliminary hearing, the Employment Tribunal struck out his entire claim. It held that several Scott Schedule allegations were unpleaded, refused permission to amend, struck out other allegations as having no reasonable prospects of success, and treated the remaining allegations as out of time.

On appeal, the central issues included the relationship between the ET1 and the Scott Schedule, time limits, amendment, strike-out, the possible liability of group companies under Equality Act 2010 section 41, and the appropriate tribunal for remission.

1. Appeal allowed in part. The Employment Tribunal had erred in treating all remaining allegations as out of time. Certain allegations had not been struck out and were capable of relating to the period after 3 June 2013. The Tribunal had not decided whether they, with other allegations, formed a continuing act. That question was remitted.
2. The Employment Tribunal had not given reasons for treating paragraph 18 of the ET1, and certain other pleaded ET1 allegations omitted from the Scott Schedule, as abandoned. The omission did not automatically remove them from the claim. Their status was remitted for determination.
3. The EAT upheld the refusal of permission to amend. The proposed allegations were new factual matters, many were out of time, the Appellant's illness did not adequately explain their late emergence given his prior instructions to solicitors, and allowing them would materially enlarge the factual inquiry and burden on the parties and Tribunal.
4. The strike-out of the allegations concerning the investigation of the grievance and computer log-on problems was set aside. Those allegations had to be assessed in their alleged context of racial bullying, harassment and disputed inferences. The reasons did not show sufficient regard to that context or to the need for caution before striking out race claims dependent on contested facts.
5. In relation to Equality Act 2010 section 41, the EAT held that the Employment Tribunal's brief obiter reasoning left doubt whether it had appreciated the potential breadth of the provision. It was necessary to evaluate carefully whether the Appellant's work was, in substance, work for the second Respondent as well as for his contractual employer.
6. The outstanding issues were remitted to a different Employment Tribunal. The unreasoned refusal of reconsideration, on points which had succeeded on appeal, created a reasonable apprehension that the original Tribunal had committed itself too thoroughly to its earlier decision.

• Employment Appeal Tribunal: Allowed the appeal in part and remitted outstanding matters to a different Employment Tribunal.
• Employment Tribunal: At a preliminary hearing, Employment Judge Glennie struck out the Appellant's entire race discrimination and harassment claim. The reserved judgment was sent to the parties on 21 July 2014.