Bryan v College of North West London

Victimisation requires a protected act and a causal connection between that act and the alleged detriment. A complaint which does not allege discrimination cannot retrospectively become a protected act because a later allegation of discrimination was made in a different context. The alleged discriminator must know, or be taken to know, that an allegation of discrimination has been made.

An Employment Tribunal must determine all allegations before it. Where it fails to do so, the Appeal Tribunal may nevertheless dismiss the omitted claims under section 35(1)(a) of the Employment Tribunals Act 1996 if all material facts have been found and only dismissal could lawfully follow.

The claimant, a computer technical support officer of Afro-Caribbean origin, brought claims including race discrimination, victimisation, harassment, unfair dismissal and breach of contract. A Scott Schedule identified allegations that he had been given demeaning tasks from January 2015 and that his annual appraisal had not been completed in February 2015.

The Employment Tribunal dismissed the discrimination and victimisation claims. On reconsideration it concluded that task allocation was a general management matter and that there was no evidential basis for inferring racial discrimination from the missed appraisal. The claimant appealed on the basis that the Tribunal had failed to determine the direct discrimination and victimisation complaints in items (f) and (g) of the Scott Schedule.

1. Appeal allowed to the limited extent that an error of law was identified, but the omitted claims were dismissed. The Employment Tribunal should have separately identified and determined the direct race discrimination and victimisation allegations in items (f) and (g) of the Scott Schedule. A tribunal is required to determine all allegations properly before it.

2. The January 2015 discussion with HR could not amount to a protected act under section 27 of the Equality Act 2010. The claimant accepted that he did not allege race discrimination at that meeting. It was impermissible to read back into that earlier, different conversation a race-discrimination allegation made five months later during redundancy consultation. In any event, conduct before 23 or 24 June 2015 could not have been caused by an allegation made only on those later dates.

3. The unchallenged findings also precluded a direct discrimination claim concerning task allocation. The allocation resulted from a management decision among employees at the same level, whom the claimant identified as comparators and who were all black. There was no evidential basis for a racial explanation.

4. The findings concerning the February 2015 appraisal could not support an inference that its non-completion was because of race or a protected act. It was likewise impermissible to transpose an allegation concerning events in September 2014 into a later and different context.

5. All relevant facts had been found and a remitted hearing could reach only one result. Exercising section 35(1)(a) of the Employment Tribunals Act 1996, the EAT dismissed the claims in items (f) and (g).

• Employment Appeal Tribunal: Allowed the appeal only insofar as the Employment Tribunal had failed to determine two pleaded allegations, then dismissed those allegations under section 35(1)(a) of the Employment Tribunals Act 1996.
• Employment Tribunal: Employment Judge Henry and members dismissed the substantive claims in a decision sent on 5 December 2016. Its rejection of the claimant’s reconsideration application was upheld in a separate EAT appeal.