Vusi Mathebula v Time 4 U Limited

An employment tribunal must determine the specific factual complaint advanced by a claimant. It must make the necessary findings of fact and apply the relevant legal principles to those findings. A finding concerning use of the same word on a different occasion cannot, without findings about the pleaded occasion, dispose of the pleaded complaint.

In a race discrimination complaint concerning a racially charged term, the tribunal must evaluate the full context. Treatment of a mixed-race group does not inevitably prevent a finding that treatment was because of race. Where an unrepresented claimant pleads conduct which naturally suggests harassment, the tribunal should consider whether it should be determined as harassment under Equality Act 2010, alternatively to direct discrimination.

The claimant, a Black African support worker, brought complaints under the Equality Act 2010. He alleged, among other matters, that his manager had called him and other Black colleagues “monkeys” at a meeting on 15 June 2020. The Employment Tribunal at London South dismissed all the claims.

The tribunal found that the word had been used, but its reasoning on context concerned an alleged WhatsApp group message. It made no clear finding on whether, or in what context, the remark was made at the meeting identified in the claim.

On the claimant’s appeal, permission was granted only in relation to dismissal of the complaint about the word “monkey” or “monkeys”. The central issue was whether the tribunal had adequately determined that pleaded complaint and its proper legal characterisation.

1. Appeal allowed. The Employment Tribunal’s decision was fundamentally deficient in its treatment of the complaint concerning the alleged remark at the meeting on 15 June 2020. It did not decide whether the manager made the remark on that occasion, nor make sufficient findings about the meeting, its participants, the context, or the substance of what was said.

2. A tribunal must make the necessary and essential factual findings on each particular complaint, and apply the relevant law to those findings. Its conclusions concerning the alleged WhatsApp message could not fairly dispose of the distinct pleaded allegation about the meeting. Even if the WhatsApp material could form part of the factual matrix, it was not a substitute for findings on the pleaded incident.

3. The assessment of direct race discrimination is highly fact-specific. The tribunal needed to consider whether use of the word towards the claimant and colleagues was inherently racist, whether race consciously or unconsciously motivated the choice of word, and whether the facts shifted the burden of proof under section 136. The fact that a group included persons of different races did not inevitably prevent a finding of treatment because of race. A robust common-sense approach was required to detriment and less favourable treatment.

4. As the claimant was unrepresented and had pleaded the relevant conduct factually, the tribunal should have considered whether the complaint was more naturally one of harassment related to race under section 26 of the Equality Act 2010, with direct discrimination pleaded in the alternative.

5. The remaining complaints were not reopened. The error concerning the alleged remark did not make unsafe the tribunal’s reasoned findings on the contractual change or grievance process. The case was remitted to a differently constituted tribunal to determine afresh the complaint concerning the meeting, as harassment related to race, alternatively direct discrimination because of race. Whether the WhatsApp incident should become a separate complaint was left to any amendment application.

• Employment Appeal Tribunal: appeal allowed in part and the complaint concerning the alleged remark at the 15 June 2020 meeting remitted to a differently constituted tribunal: [2024] EAT 89.
• Employment Tribunal (London South): dismissed the claimant’s claims under the Equality Act 2010.