Jamu v ASDA Stores Ltd & Ors

A tribunal must determine the claims defined by the pleadings. Clarifications may assist, but any amendment must be clearly recorded. A claimant who personally did a protected act advances direct victimisation, even if the act consisted of representing another person.

A requirement to attend a meeting can be a provision, criterion or practice for reasonable-adjustments purposes. The claim nevertheless fails if the tribunal permissibly finds no substantial disadvantage. A tribunal errs by failing to determine a pleaded reasonable-adjustments complaint, including one developed by amendments, unless it has been withdrawn or disposed of.

The Claimant, a warehouse operative disabled by stress and depression, brought claims of victimisation, disability discrimination and harassment against his employer and individual managers.

The Leicester Employment Tribunal dismissed the claims. It treated the victimisation complaint as associative victimisation, confined the reasonable-adjustments complaint to a meeting on 18 March 2013, and rejected an alleged breach of confidence concerning that meeting.

On appeal, the central issues were the proper characterisation and scope of the pleaded claims, whether the Tribunal had failed to address complaints about heavy duties on returns to work, and whether its factual findings were perverse.

1. Appeal allowed in part. The Employment Tribunal erred by characterising the victimisation claim as associative victimisation. The pleaded case was direct victimisation: the Claimant alleged that he was subjected to detriment because he had himself performed a protected act by representing a colleague in a race-discrimination complaint. The error did not affect the result. The Tribunal had made permissible findings that there was no detriment, relevant knowledge, or causal connection.

2. The Tribunal also erred in limiting the reasonable-adjustments claim to the 18 March 2013 meeting. The claim included the alleged assignment of heavy duties on returns to work. The February 2013 allegation could not succeed because of the unchallenged finding that the Respondents did not know, and could not reasonably have known, of the disability before 18 March.

3. The Tribunal failed to determine the pleaded and amended complaint concerning heavy duties on 14 June 2013. The appeal was therefore allowed on that part of ground 2 and the matter required remittal.

4. For the 18 March meeting, the requirement to attend was capable of being the relevant PCP. The Tribunal erred in finding otherwise, but permissibly found that the Claimant had suffered no relevant disadvantage. That finding disposed of this aspect of the reasonable-adjustments claim.

5. The harassment claim pleaded was that the Third Respondent had breached the Claimant's confidence. The Tribunal found no evidence of that breach. A separate allegation about Mr Spragg's later conduct had not been pleaded and did not require determination, whatever vicarious-liability issue might otherwise have arisen.

The remaining grounds, including the perversity challenges, were dismissed. The parties were directed to make written representations on disposal of the outstanding 14 June 2013 complaint.

• Employment Appeal Tribunal: allowed the appeal only insofar as the Employment Tribunal had failed to determine the reasonable-adjustments complaint concerning 14 June 2013; otherwise dismissed the appeal. [2016] UKEAT 0221_15_0806
• Leicester Employment Tribunal: dismissed the Claimant's claims of victimisation, harassment and disability discrimination in a judgment sent to the parties on 17 March 2015.