Xerox (UK) Ltd & Ors v Zeb

In an employment discrimination claim, the court must determine the issues from the claimant’s pleaded case. It should not treat a consequence of alleged discrimination as a separate discriminatory act where the claimant does not advance it as such. A head of claim may be struck out where it has no reasonable prospect of success, including where the whole department was affected equally by a redundancy exercise. Removing that head does not automatically dispose of earlier allegations or their limitation defence. Whether earlier acts amount to conduct extending over a period is a substantive issue requiring determination on the pleaded case and, where necessary, evidence.

The claimant, a Muslim of Pakistani origin, alleged race, religion and sex discrimination following a workplace reorganisation. The Employment Tribunal dismissed his claims as having no reasonable prospect of success, treating removal from his post, loss of promised project work and being placed at risk of redundancy as three acts. The Employment Appeal Tribunal allowed his appeal and understood the redundancy-risk allegation as capable of proceeding as a separate claim.

In the Court of Appeal, the respondents argued that the redundancy risk was merely a consequence of the earlier acts or, alternatively, a hopeless separate claim. The claimant disavowed any discrete claim. The central issues were the proper scope of the pleaded case and the effect of striking out the redundancy allegation on limitation of the remaining claims.

Lord Justice Underhill gave the judgment, with Lord Justices McCombe and Flaux agreeing. The appeal was allowed in part.

1. Scope of the pleaded case. The Employment Tribunal’s threefold analysis did not correspond with the ET1, the case-management summary or the claimant’s witness statement. Being placed at risk of redundancy had been pleaded as a consequence of the earlier alleged discrimination, not as a separate discriminatory act. The claimant expressly disavowed any discrete claim. It would be unjust to hold him to a case he did not seek to maintain, particularly where it did not correspond with his written case.
2. The redundancy-risk allegation. Even if treated as a separate claim, it had no reasonable prospect of success. The redundancy exercise affected the whole department equally, so there was no sufficient basis for treating the claimant’s placement at risk as discrimination because of race, religion or sex. The supposed claim was therefore struck out under the Employment Tribunal Rules.
3. Remaining claims and limitation. Striking out the supposed third act did not automatically determine whether the first two acts were out of time. The Employment Tribunal had expressly declined to decide whether the alleged conduct extended over a period. The claimant had maintained that the treatment continued until 31 January 2014. The remaining limitation issue under sections 123(1) and 123(3)(a) of the Equality Act 2010 required determination on the issues emerging from the pleadings and, as necessary, evidence about the substance of the claims.

The case was remitted to the Employment Tribunal to determine the pleaded issues, including the limitation question.

• Court of Appeal (Civil Division): appeal allowed in part; the supposed discrete claim concerning placement at risk of redundancy was struck out and the remaining issues were remitted.
• Employment Appeal Tribunal: appeal allowed and the Employment Tribunal’s strike-out decision was reversed, including insofar as the claim was understood to include the redundancy-risk allegation.
• Employment Tribunal: claims of race, religious and sex discrimination dismissed as having no reasonable prospect of success.