Ihekwoaba v Aston Services Group Ltd

Where a litigant in person has pleaded the general nature of alleged harassment, and has not been ordered to provide fuller particulars, a tribunal must not simply disregard a specific incident later identified in a witness statement if it falls within the pleaded case. It should explore whether the allegation is maintained and whether it can be fairly determined with an opportunity for the respondent to answer it.

An omitted allegation may require reconsideration of related discrimination complaints where, if proved, it supplies evidence that conduct found to be related to sex was also related to race. A tribunal is not, however, required to recast discrimination and unfair-dismissal allegations as whistleblowing claims where that would introduce distinct statutory ingredients and issues.

The claimant alleged harassment related to sex and race by her supervisor, victimisation, and unfair dismissal. The Employment Tribunal upheld two complaints of sexual harassment, dismissed the race-harassment and victimisation claims, and awarded compensation.

On appeal, the claimant contended that the Tribunal had failed to address several harassment allegations, had misapplied the burden of proof, had erred on victimisation, and should have considered whistleblowing claims. A central allegation in her witness statement was that the second respondent touched her neck and remarked that white girls, especially from Poland, were pretty.

The central issue was whether the Tribunal could fairly leave that allegation unaddressed when it fell within the claimant's pleaded description of harassment and potentially bore on both sex and race.

1. Appeal allowed in part. The Employment Tribunal erred by failing to address the alleged incident in which the second respondent touched the claimant's neck and made the remark concerning white girls from Poland. The allegation was within the general particulars in the claim form and the case-management record. It was a distinct allegation of physical touching and was potentially material to both protected characteristics.

2. The claimant was a litigant in person and had never been directed to provide fuller particulars. The respondents were entitled to a fair opportunity to answer the allegation, but the Tribunal should at least have explored at the merits hearing which allegations in the witness statement were relied upon, whether the respondents could respond, and whether any disclosure or case-management step was needed. It was not fair simply to ignore the allegation.

3. If the allegation is proved on remission, the Tribunal must determine whether it was harassment related to sex and race within section 26 of the Equality Act 2010. It must also consider whether the remark alters its assessment of the two incidents already found to be sexual harassment, including the implications for the burden of proof under section 136.

4. The Tribunal made no error in treating the two text-message incidents as the invasion of personal space and touching of the claimant's hand. It also addressed and rejected the toothbrush allegation. The alleged personal discussions could reasonably be treated as background rather than a separate harassment complaint.

5. The victimisation grounds failed. Read fairly, the Tribunal's reference to a decision to discipline concerned the decision to commence disciplinary proceedings and suspend the claimant, not the later dismissal. Its imprecise reference to falsification of timesheets did not undermine its finding that the decisions were based on perceived misconduct rather than protected acts. There was no evidential basis requiring a separate tainted-information analysis.

6. The Tribunal was not required to construe the claim as containing whistleblowing claims under the Employment Rights Act 1996. Such claims had not been pleaded and would have introduced additional issues, including public interest and the statutory causation test.

7. The remitted issues were directed to return to the same Employment Tribunal panel, so far as possible.

• Employment Appeal Tribunal: Appeal allowed in part. The race and sex harassment issues concerning the alleged neck-touching and remark were remitted to the same panel so far as possible.
• Employment Tribunal: Upheld two complaints of sexual harassment and dismissed the race-harassment and victimisation claims. It awarded £6,000 plus interest for injury to feelings.