Lasila v APCOA Parking (UK) Ltd

An Employment Tribunal may determine a discrimination complaint by reference to issues clarified for the final hearing and to evidence adduced on those issues. A respondent need not formally amend its response merely because the evidential explanation for undisputed differing treatment develops, provided that the real issue remains whether the treatment was because of race and the claimant has an opportunity to address the evidence.

A perversity challenge fails where there was some evidence on which the Tribunal was entitled to make the challenged factual finding. The precise nature of a vehicle defect was not determinative; the material question was whether race was a factor in the subsequent difference in treatment.

The claimant, a Civil Enforcement Officer, brought claims including race discrimination after leaving his employment. One complaint concerned being directed to drive a vehicle with a clutch problem back to base, whereas a white colleague's vehicle was recovered.

The Employment Tribunal rejected all claims. It found that the other vehicle had four slashed tyres and that the difference in treatment was not related to race. At a Rule 3(10) hearing, a discrete appeal was permitted to proceed on the basis that the finding about slashed tyres might lack evidential support and might have been procedurally unfair because the response had admitted an allegation referring to a flat tyre.

The central issues were whether there was evidence supporting the finding of slashed tyres and whether the respondent had to amend its response before relying on that explanation.

1. Appeal dismissed. The Employment Tribunal's notes showed that the issue of slashed tyres had been put to at least two witnesses and that the claimant cross-examined them on it. There was therefore some evidence on which the Tribunal could find that all four tyres had been slashed. The finding was not perverse.
2. Although the response admitted the relevant allegation in the claim form, it did not admit discrimination. The Tribunal was entitled to clarify the pleadings through the agreed list of issues and to decide the case by reference to those issues.
3. The respondent did not need formally to amend its response to contend that the other vehicle had four slashed tyres rather than a flat tyre. The undisputed matters were that both vehicles had suffered mishaps, that one was driven back and the other was recovered, and that the Tribunal had to determine the reason for that difference. The claimant had an opportunity to challenge the evidence on the explanation ultimately accepted.
4. The analogy with Ladbrookes Racing v Traynor was inapposite because that case concerned a claimant advancing a new head of claim. The explanation for the treatment did not create a new claim or alter the essential discrimination issue.
5. The decisive inquiry was whether race was a factor in the different treatment after the vehicle incidents. It was not confined to whether the claimant's vehicle had been smoking rather than suffering from a clutch defect. The Tribunal was entitled to find that a vehicle with four slashed tyres could not sensibly be driven back, whereas one with a noisy clutch could be driven a short distance for repair.

• Employment Appeal Tribunal: Appeal dismissed; the Employment Tribunal's rejection of the race-discrimination complaint was upheld.
• Employment Tribunal, East London Hearing Centre: Following hearings between 16 and 24 October 2018, all of the claimant's claims, including race discrimination, were dismissed.