Dr S Hassane v GlaxoSmithKline Services Unlimited

An Employment Tribunal determines the case advanced in the claim and response, read with any properly settled list of issues. A list of issues is a case-management tool, not a pleading, but it does not oblige the Tribunal to identify and determine an unpleaded comparison merely because it appears in interlocutory material or a witness statement.

In a redundancy dismissal, alternative employment is generally relevant to fairness. A claimant must nevertheless provide an evidential basis for an allegation that a vacancy was withheld or that another employee received inconsistent treatment. For discrimination claims, a protected characteristic and vague assertions do not, without more, shift the burden of proof. Reasons are adequate where they explain the Tribunal's conclusion on the case and evidence actually before it.

The claimant was dismissed for redundancy following a reorganisation of the respondent's Global Health Unit. He brought claims including unfair dismissal and direct discrimination on grounds of age, race and religion or belief.

He had applied for a Strategy, Planning and Operations Director role. The recruitment process was put on hold. Before the Employment Tribunal, his pleaded comparison concerning that role was with an employee on maternity leave. Shortly before the merits hearing, he obtained limited disclosure concerning Adele Cheli, who was appointed after his employment had ended. He did not amend his claim or the list of issues to rely on her as a comparator.

The London South Employment Tribunal dismissed the relevant claims. The appeal alleged that it had prevented the claimant from developing, and failed to determine, a case that Ms Cheli's treatment demonstrated unfair dismissal or shifted the discrimination burden of proof.

1. Appeal dismissed. The Employment Tribunal did not err in failing to determine a specific comparison with Ms Cheli. The claimant's claim forms, further particulars and list of issues identified different comparators. His disclosure application and witness statement did not amend the case or make clear that he advanced a distinct comparison with Ms Cheli.

2. Although Employment Tribunal proceedings are informal, the essential case is set by the claim and response. Applying Chandhok and anor v Tirkey [2015] ICR 527, the EAT held that the issues do not develop freely as litigation progresses. The Tribunal was entitled to work from the list of issues in the context of the pleadings. It was not required to search interlocutory correspondence for a possible further case or effectively amend the claim for the claimant.

3. Alternative employment was relevant to the fairness of a redundancy dismissal, consistently with Langston v Cranfield University [1998] IRLR 172. However, the claimant supplied no evidence that the vacancy was kept open to prevent his appointment, or that the employee on maternity leave was retained for a reason other than the protection afforded by Maternity and Parental Leave etc. Regulations 1999/3312.

4. The same evidential deficiency defeated the discrimination point. The claimant had made vague allegations and had not established facts capable of shifting the burden to the respondent. The Tribunal had nevertheless addressed alternative employment through its findings on vacancies, the claimant's knowledge of them, and the different basis on which another employee's employment was extended.

5. The Tribunal's reasons adequately explained its conclusion that the redundancy dismissal was fair and reasonable on the case it had to determine.

• Employment Appeal Tribunal: appeal dismissed: [2023] EAT 150.
• London South Employment Tribunal: dismissed the claimant's unfair-dismissal and discrimination claims following a merits hearing in March 2021; written reasons were sent on 5 May 2021.