A Achi v GMB & Anor

An employment tribunal must determine the complaints and issues actually advanced. It should make appropriate allowances for a litigant in person, but it must not formulate an unpleaded case, cross-examine witnesses on a party’s behalf, or decide a substantive point that was not put.

For victimisation, the tribunal must identify the decision-maker’s real reason. Conduct related to a protected act may be a distinct and legitimate reason if the tribunal can fairly and sensibly separate it from the protected act. A protected act need only have a material influence, not be the sole or primary reason.

A constructive-dismissal claim fails where there was no fundamental breach and, independently, the employee had already decided to resign before the alleged final straw.

The claimant, a trade-union official, raised a grievance alleging bullying and race discrimination while absent on contractual sick pay. After publicity suggested that he was providing external training, GMB investigated whether he had worked while off sick. The investigation ended without disciplinary action.

Following dismissal of the grievance and grievance appeal, officers from outside the region referred the claimant for disciplinary investigation because they believed the allegations appeared spurious, vexatious or malicious under GMB’s policy. GMB then ended his sick pay about two weeks early through a mistaken calculation. The claimant resigned and claimed victimisation and constructive unfair dismissal.

The Employment Tribunal dismissed those claims, but awarded the unpaid sick pay. The claimant appealed the dismissal of specified victimisation complaints and constructive dismissal. The central questions were whether the tribunal had failed to address the true victimisation case, and whether its findings permitted constructive dismissal.

1. Appeal dismissed. The Employment Tribunal made no error of law in dismissing the victimisation complaints or the constructive-dismissal claim.

2. The tribunal was entitled to decide the discrete complaints identified in the agreed list of issues. It had properly addressed the complaints concerning Mr Morgan’s letters, suspension of sick pay and initiation of the investigation. The claimant had not advanced a complaint that Mr Morgan improperly influenced the investigator or that the investigation should have ended after an organiser’s response. The tribunal could not fairly make adverse findings on matters that had not been raised or put to witnesses.

3. On the referral to disciplinary process, the tribunal correctly focused on the actual motivations of Mr Phillips and Mr Derrick. It found that they believed the grievance appeared spurious, vexatious or malicious and that GMB’s policy required referral in those circumstances. That reason was capable of being distinct from the protected act. The tribunal was not required to infer that the specific allegation of race discrimination materially influenced the decision.

4. The EAT applied the approach explained in Kong. Separability is not an independent legal rule or a seriousness threshold. Once the tribunal has found the real reason for the impugned treatment, it must decide whether that reason can fairly and sensibly be separated from the protected conduct. The tribunal’s findings were open to it and were not perverse.

5. The constructive-dismissal challenge failed independently. The tribunal was entitled to find that the premature cessation of sick pay was an honest payroll error and did not evince an intention no longer to be bound by the contract. It was also bound by its unchallenged factual finding that the claimant had decided months earlier to resign when sick pay ended, rather than resigning in response to the March 2018 non-payment. As the victimisation grounds failed, the parasitic constructive-dismissal ground also failed.

• Employment Appeal Tribunal: Appeal dismissed: [2023] EAT 29.
• Employment Tribunal (Birmingham): In a reserved decision sent in April 2020, dismissed the claims for constructive unfair dismissal, direct race discrimination and victimisation, while upholding a wages claim for unpaid contractual sick pay.