CP v TU (Victimisation Discrimination)

A tribunal may determine only the discrimination complaint brought before it. For victimisation under section 27 of the Equality Act 2010, the claimant must identify the protected act relied upon and establish that it caused the detriment. A tribunal cannot uphold a claim on a distinct, unpleaded protected act merely because the evidence reveals it; an amendment is required.

In unfair-dismissal claims, section 98 of the Employment Rights Act 1996 requires an assessment of overall fairness in all the circumstances. The fact that an initial disciplinary step may have been motivated by an improper personal concern does not itself make the eventual dismissal unfair. The tribunal may find a fair dismissal where the allegations were properly investigated, the employee's response considered, and an independent panel genuinely reached a conclusion within the range of reasonable responses.

The claimant, formerly an assistant general secretary of the respondent trade union, was dismissed for misconduct following disciplinary proceedings. She had previously brought discrimination claims. The Employment Tribunal upheld three sexual-harassment claims but rejected her victimisation and unfair-dismissal claims.

On victimisation, the Tribunal found that the General Secretary's ultimatum that she enter a compromise agreement or face disciplinary action was motivated by concern that informal complaints about his sexual conduct might be formalised. The claimant had not, however, pleaded those complaints as protected acts, nor sought to amend or recall him for cross-examination. Her pleaded case relied instead on an earlier email.

The claimant appealed, contending that the Tribunal should nevertheless have found victimisation and that the dismissal was perverse because the disciplinary process began with the General Secretary's self-protective motive.

1. Appeal dismissed. The Employment Tribunal was entitled to reject the victimisation claim. The alleged informal complaints at the conference were a distinct protected act from that pleaded. A protected act is a necessary element of victimisation under section 27 of the Equality Act 2010; without its identification, the Tribunal could not determine whether the later detriment was caused by it.

   The Tribunal's function was accusatorial, not inquisitorial. It had to resolve the disputes the parties placed before it. It could not find victimisation on the basis first advanced in closing submissions, particularly where there had been no amendment and the General Secretary had not been cross-examined on that case. Chapman v Simon [1994] IRLR 124 and Ahuja v Inghams [2002] EWCA Civ 1292 therefore applied.

2. The Tribunal had also considered and rejected the pleaded causal case: it found as fact that the 21 September ultimatum was not in response to the protected act relied upon in the claim. The appeal could not convert the Tribunal's observations about a possible different protected act into an adjudicated claim.

3. The unfair-dismissal ground disclosed no error of law or perversity. The Tribunal assessed fairness in all the circumstances under section 98 of the Employment Rights Act 1996. It considered the General Secretary's motivation and expressly described it as concerning, but found that the matter had been properly investigated, the claimant's response considered, and an independent panel genuinely believed her guilty.

   Applying the approach derived from BHS Ltd v Burchell [1978] IRLR 379 and Iceland Frozen Foods v Jones [1983] ICR 17, and then considering overall fairness, the Tribunal was entitled to conclude that dismissal fell within the band of reasonable responses. But-for causation was not the governing question.

4. The respondent's costs application was rejected. The appeal narrowly did not meet the threshold of being misconceived.

• Employment Appeal Tribunal: appeal dismissed in CP v TU (Victimisation Discrimination) [2015] UKEAT 0387_14_0403.
• Employment Tribunal, London (South): decision sent to the parties on 5 August 2013. The Tribunal rejected the victimisation and unfair-dismissal claims, while upholding three sexual-harassment claims.