M Bogdan v The Cabinet Office - Government Digital Services

An Employment Tribunal must determine material factual issues that fall within the case it has been required to decide. Its reasons must show why it accepted or rejected contested evidence on issues vital to the outcome. It may not confine a discrimination allegation to a formal contractual procedure where the list of issues also alleges discriminatory failure to address earlier informal requests or complaints.

Reasons may nevertheless be sufficient where the Tribunal has rejected the central factual premise of a complaint and made findings which answer it. It need not address every later item of evidence separately. Whether to seek supplemental reasons under the Burns/Barke procedure is discretionary. It will ordinarily be inappropriate where the Tribunal may have failed to decide an issue and a substantial time has elapsed.

The claimant, a Romany Gypsy, appealed against the dismissal by the Employment Tribunal sitting at East London of her claims, including claims of direct race discrimination. Her role was re-evaluated in July 2020 from EO to HEO grade.

The appeal concerned three allegations in the list of issues. Issues 6.1 and 6.2 alleged that the respondent had repeatedly failed to deal with requests, made throughout her employment, to re-evaluate or increase the grading of her role. Issue 6.13 alleged that she had been wrongly graded from the start of her employment and that the position persisted.

The central question was whether the Tribunal had failed to determine material issues or provide adequate reasons for rejecting those discrimination allegations.

1. Appeal allowed in part. The appeal succeeded on Ground 1. Issues 6.1 and 6.2 were remitted to a differently constituted Employment Tribunal. Ground 2, concerning issue 6.13, was dismissed.

2. The list of issues had, in practice, substantially expanded the pleaded case. Nevertheless, issues 6.1 and 6.2 were squarely before the Tribunal. Read fairly, they alleged more than delay in processing the formal JEGS request made in 2020. They alleged direct race discrimination through a failure to acknowledge, address or accept earlier informal requests or complaints about the grading of the claimant’s role.

3. The Tribunal’s finding that it did not find several requests had been made was ambiguous. If it confined the issue to formal requests under the job-evaluation policy, it rewrote the issues. The evidence on whether earlier informal requests were made was disputed and was not all one way. The Tribunal had to decide that dispute and explain, by reference to the evidence and any inferences drawn, why it accepted or rejected the claimant’s case. Its failure to do so was a serious procedural irregularity and left its reasons inadequate.

4. The EAT rejected the submission that the claims would inevitably have failed. If informal requests or complaints had been made, the Tribunal would have had to consider their treatment, any comparator treatment, and whether race was the reason for any difference.

5. By contrast, the Tribunal adequately addressed issue 6.13. It rejected the claimant’s premise that undertaking cost-savings work required her role to have the same grade as other roles involving such work. It was entitled to find that her role evolved over time and would not have been graded HEO earlier. Those findings answered the allegations of initial under-grading and its persistence; the Tribunal did not have to address each later document separately.

6. It was inappropriate to use the Burns/Barke procedure: the Tribunal may have failed to consider the issues at all, and more than two years had passed since it heard the evidence. The outstanding issues were therefore remitted.

• Employment Appeal Tribunal: Allowed the appeal in part and remitted issues 6.1 and 6.2 to a differently constituted tribunal.
• Employment Tribunal, East London: In a reserved judgment sent to the parties on 12 September 2022, dismissed all the claimant’s claims.