Chalmers v Airpoint Ltd & Ors

A tribunal may construe an employee’s grievance in its factual context when deciding whether it contains an allegation of unlawful discrimination and is therefore a protected act. A cautious statement that treatment may be discriminatory, without identifying sex discrimination, was capable of being found not to allege a contravention of the Equality Act 2010. An appellate tribunal must accept a factual finding unless no reasonable tribunal could have made it.

A claimant must give notice of the legal grounds on which relief is sought. A new victimisation case based on an employer’s belief that proceedings may be brought cannot ordinarily be introduced on appeal where it was neither pleaded nor advanced below.

The claimant, a business support manager, brought claims of sex discrimination, harassment, victimisation, constructive dismissal and financial remedies. The Employment Tribunal at Glasgow dismissed them.

Her appeal proceeded on two permitted grounds. First, she contended that her grievance email of 27 January 2017, which stated that exclusion from a Christmas event and a hardware refresh might be discriminatory, was a protected act. Secondly, she sought to rely on evidence said to show that the respondents expected her to bring proceedings, or that she had made a further allegation of sex discrimination during an investigation.

The central issues were whether the Tribunal’s construction of the email was perverse and whether the claimant could advance new bases for victimisation under section 27 of the Equality Act 2010 on appeal.

1. Appeal refused. The Employment Tribunal was entitled to find that the grievance email did not allege that the claimant had been discriminated against on grounds of sex. Its wording was cautious, did not mention sex, and was capable of conveying uncertainty or a complaint based on a different ground.

2. The Employment Appeal Tribunal could not substitute its own interpretation for the Tribunal’s permissible factual construction. The email itself was evidence, and its natural meaning, read with the context and the claimant’s HR experience, supported the finding. Applying Martin v Glynwed Distribution Ltd 1983 ICR 511, factual conclusions must be accepted unless no reasonable tribunal could have reached them. The finding was not perverse.

3. The Tribunal had been aware that a bare allegation of discrimination could, in an appropriate context, amount to a protected act. Its approach was consistent with Durrani v London Borough of Ealing EAT0454/12 and Fullah v Medical Research Council & Anr EAT0586/12.

4. The claimant could not on appeal introduce a victimisation claim under section 27(1)(b) of the Equality Act 2010, based on the respondents’ belief that she might bring proceedings. That ground had not been stated in the claim form, advanced before the Tribunal, or identified in the notice of appeal. A respondent is entitled to defend the case notified to it; allowing the new ground would be unfair.

5. Nor could the claimant rely on an internal exchange between two respondent representatives as proof of a separate allegation under section 27(2)(d). There was no evidence that such an allegation had been communicated by the claimant to the respondents, and it had not been relied upon at the hearing below. A remittal would serve no purpose.

• Employment Appeal Tribunal: appeal from the Employment Tribunal at Glasgow refused.
• Employment Tribunal at Glasgow: dismissed the claimant’s claims for sex discrimination, harassment, victimisation, constructive dismissal and remedies.