Yasin v The Secretary Of State For Justice

An Employment Tribunal errs in law if it dismisses discrimination claims on a substantial factual and legal basis that was not pleaded, identified in the agreed issues, or otherwise fairly put to the claimant. Evidence touching on the matter at the hearing does not cure the unfairness where the claimant had no proper notice that the case could be decided on that basis.

This applies where an employer relies on an alleged breakdown of trust and confidence as an independent answer to a proposed reasonable adjustment or as justification for unfavourable treatment under Equality Act 2010 section 15.

The claimant, a temporary agency worker with ulcerative colitis, received a conditional fixed-term employment offer. Following a period of disability-related sickness absence, the respondent ended his assignment and withdrew the offer, referring to his attendance record.

The Birmingham Employment Tribunal rejected claims under sections 15 and 21 of the Equality Act 2010. It found that the respondent could reasonably have been expected to know of the disability by the time it reviewed its decision. It nevertheless held that disregarding disability-related absence would not have changed the result because the claimant's communication had undermined trust and confidence. It also treated that conclusion as justifying the withdrawal of the offer.

The claimant appealed. The central issue was whether the Tribunal could decide the claims on that unpleaded basis.

1. Appeal allowed. The Employment Tribunal's decisions on the claims under sections 15 and 21 of the Equality Act 2010 were set aside.

2. The respondent's pleaded case, read with the claimant's further particulars and the agreed list of issues, put the claimant's attendance record and the requirement for an acceptable attendance record in issue. It did not plead that he had deliberately withheld information, that this caused a breakdown of trust and confidence, or that this was an independent reason for withdrawing the conditional offer.

3. Those omitted matters were substantial. The Tribunal used them to conclude both that the proposed adjustment of disregarding disability-related absences would have made no difference and that withdrawal of the offer was proportionate under section 15(1)(b). The claimant was entitled to notice of that case. With notice, he might have contended that the alleged failure to communicate itself arose from his disability or required an adjustment.

4. Although the evidence and submissions referred to communication to some extent, the claimant was not put on notice that the Tribunal might determine the claims on the basis ultimately adopted. Requiring the material facts and consequences to be pleaded was not undue formalism: Chandhok v Tirkey [2015] ICR 527 did not excuse the omission in these circumstances.

5. The Tribunal had therefore decided the case on a materially different factual and legal basis without giving the losing party a fair opportunity to address it. The issues concerning section 15(1)(b) and reasonable adjustments were remitted to a freshly constituted Tribunal. A Tribunal Judge was to give necessary case-management directions, including on any application to amend the pleadings.

• Employment Appeal Tribunal: allowed the appeal, set aside the decisions on the sections 15 and 21 claims under the Equality Act 2010, and remitted the relevant issues to a fresh Tribunal.
• Employment Tribunal, Birmingham: by a decision sent on 18 December 2015, rejected the claimant's disability-discrimination claims under sections 15 and 21.