Colin Smith v Nottingham City Transport

A complaint pleaded under a distinct legal head remains live unless it is covered by a disposal order or has been withdrawn clearly and unambiguously. Where correspondence is ambiguous, particularly when a claimant is unrepresented at the merits hearing, the tribunal should check the claimant’s position before treating the complaint as withdrawn.

For harassment by effect, an employment tribunal may reject the complaint if it finds that it was not reasonable for the conduct to have the alleged effect. It need not make a finding on the claimant’s perception where that finding is dispositive. Awards below the lower Vento band are not invariably prohibited, although they will generally be avoided.

The claimant brought disability discrimination complaints against his former employer under the Equality Act 2010. The Employment Tribunal dismissed all but one complaint under section 15, arising from remarks made on 18 October 2018, and awarded £900 for injury to feelings without interest.

Following deposit orders, the claimant’s former representative withdrew some claims but stated that specified claims remained. The Tribunal treated a harassment allegation concerning a meeting on 19 October 2018 as no longer live. The claimant appealed on that issue and on the Tribunal’s treatment of other harassment and discrimination allegations, its reasons for the injury-to-feelings award, and its refusal of interest.

1. Appeal allowed in part. The Employment Tribunal erred by treating allegation 6, a harassment complaint concerning Ms Swift’s conduct on 19 October 2018, as no longer live. The deposit order expressly covered allegation 4, not allegation 6. Although the representative’s email contained wording capable in isolation of suggesting a wider withdrawal, it also expressly stated that allegation 6 was maintained. It was therefore ambiguous and could not safely found a conclusion that allegation 6 had been withdrawn without checking the claimant’s position.

2. The allegation was remitted to the Employment Tribunal for determination. A factual allegation may support more than one statutory complaint. Withdrawal or dismissal of one legal complaint does not, without clear words or an applicable order, dispose of another complaint based on overlapping facts.

3. The Tribunal did not err in dismissing the separate harassment allegation concerning Ms Swift’s remarks at the 22 November meeting. It had directed itself to section 26, including the effect assessment in section 26(4). Its conclusion that it was unreasonable to regard the conduct as having the proscribed effect was fatal to that complaint, whether or not the claimant perceived the conduct to have that effect.

4. The Tribunal was entitled to regard Mr Wright’s confirmation on 19 October as not unfavourable treatment under section 15. On a fair reading, it found that the claimant had elicited the confirmation, by assuring Mr Wright that the conversation was off the record, in order to record and use it in the grievance process.

5. The reasons for the £900 injury-to-feelings award were adequate. The Tribunal permissibly found that compensable distress from the 18 October remarks was confined to the immediate upset. It was wrong to think that it could not award below the lowest Vento band, but its assessment that the true loss was £750 supported its discretionary refusal of interest under the Employment Tribunal (Interest on Awards in Discrimination Cases) Regulations 1996. The remaining grounds failed.

• Employment Appeal Tribunal: Appeal allowed only as to the failure to determine allegation 6. That complaint was remitted to the Employment Tribunal.
• Employment Tribunal, Nottingham: Following a merits hearing in August and September 2021, it dismissed all claims except one claim under section 15 of the Equality Act 2010, awarded £900 for injury to feelings, and declined interest.