Kedziora v Servest Group Ltd

An Employment Tribunal must not reject a discrimination claim as incapable of sensible response where the claim form sets out facts capable of disclosing the protected characteristic, discriminatory conduct, and a connection between them. A lack of further detail does not justify exclusion of the claim where any difficulty in responding can be addressed by a request for further information.

The claimant appealed against the Employment Tribunal’s decision, sent on 29 February 2016, partially to reject his ET1 on the basis that his sexual-orientation discrimination claim could not sensibly be responded to. The Tribunal accepted his claims for sex discrimination, race discrimination and equal pay.

The ET1 stated that the claimant was gay. It described a supervisor’s sexualised and derogatory remark, an allegedly inadequate response to his complaint, subsequent derogatory language by staff at the client’s premises, and his inference that private information about his sexual orientation had been disclosed. The issue was whether those matters sufficiently particularised a potential sexual-orientation discrimination claim.

1. Appeal allowed. The ET had erred in law by excluding the sexual-orientation discrimination claim from the allegations that the claimant could pursue.

2. The ET1 clearly stated that the claimant was gay. It also identified conduct capable of being understood as derogatory conduct based on sexual orientation: the supervisor’s remark, the alleged failure to investigate the claimant’s complaint, and later derogatory terms used by staff at the client’s premises.

3. The claim form further set out the claimant’s inference that information about his sexual orientation had passed from his employer to those staff. That was capable of constituting relevant private information which the claimant could choose whether to disclose.

4. Read as a whole, the ET1 disclosed sufficient details of a potential claim of discrimination on grounds of sexual orientation. The question at this stage was not whether every factual allegation was proved or fully particularised.

5. If the respondent required additional particulars in order to answer the allegations, the appropriate course was a request for further information. Any such need did not make the claim incapable of sensible response or justify its rejection.

• Employment Appeal Tribunal: allowed the claimant’s appeal against the Employment Tribunal’s partial rejection of the sexual-orientation discrimination claim.
• Employment Tribunal: by a decision sent on 29 February 2016, rejected the sexual-orientation element of the ET1 as being in a form that could not sensibly be responded to, while accepting the remaining claims.