Hesham Elhalabi v Avis Budget UK Ltd

The Employment Appeal Tribunal dismissed the appellant's appeal against an Employment Tribunal decision which had rejected claims of race discrimination and unfair dismissal. The EAT held that the ET was not obliged to address background, out-of-time allegations of discrimination in detail because they were not material to the in-time complaints and did not provide the "something more" required by section 136 of the Equality Act. The EAT also held that a new procedural complaint — that the claimant had not been warned of a dishonesty allegation before dismissal — had not been raised before the ET and was not an obvious matter the ET should have raised of its own motion; accordingly the point should not be allowed on appeal. Finally, even if the new point were considered, the ET's finding of dishonesty and its consideration of the whole dismissal process (including the appeal) meant the dismissal was within the band of reasonable responses.

Background and parties: The claimant (appellant) brought claims of race discrimination and unfair dismissal against his employer, the respondent. The ET (Employment Judge Anstis and members) dismissed those claims in a judgment promulgated in February 2021. The claimant appealed to the Employment Appeal Tribunal.

Nature of the application: The appeal advanced two permitted grounds: (1) that the ET erred in not considering whether the dismissal was procedurally unfair because the claimant was not told of the most serious allegation (a dishonesty allegation concerning how CCTV footage was obtained) before dismissal; and (2) that the ET failed to explain its conclusion about the relevance of background, out-of-time allegations of race discrimination.

Facts and procedural posture:

• Disciplinary proceedings arose from incidents on 12 and 18 April 2019 relating to alleged refusal to work at another outlet and an allegation that the claimant left a store unattended. The claimant produced CCTV footage and would not disclose how he obtained it. The respondent investigated and concluded the claimant had been dishonest about obtaining the footage.
• The claimant was invited to a disciplinary meeting while off sick; he answered questions in writing and said a former colleague had obtained the CCTV footage. That colleague later denied involvement. The claimant was dismissed for gross misconduct, including dishonesty; his appeal was unsuccessful. The ET found the claimant dishonest and dismissed his claims.

Issues before the EAT:

• Whether the ET erred by failing to explain or consider whether the dismissal was procedurally unfair because the claimant was not warned of the dishonesty allegation prior to dismissal.
• Whether the ET erred by failing to consider or explain its conclusions about background, out-of-time race discrimination complaints and whether they could supply the "something more" required to infer discrimination under section 136 of the Equality Act.

Court’s reasoning: On the second ground, the EAT concluded the ET had adequately explained that the historical out-of-time complaints were not materially connected to the specific misconduct leading to dismissal and did not supply the required additional evidence to infer race discrimination. On the first ground, the EAT applied authorities on when new points may be raised on appeal and on the elementary requirement that an employee know the case to be met. It held that tribunals are not required to identify and examine every potential procedural failing that was not argued before them; only well-established, obvious matters must be taken up as of course. The failure to notify a dishonesty allegation had not been argued before the ET and was not, in the circumstances of this conduct dismissal, an obvious point the ET was required to raise. Further, even if considered, the ET had found dishonesty and had evaluated the whole disciplinary process including the appeal, and dismissal for dishonesty fell within the band of reasonable responses.

Appeal dismissed. The EAT held that the ET did not err in relation to background out-of-time discrimination evidence because it was not material to the in-time complaints and did not provide the "something more" under section 136 of the Equality Act. The EAT further held that the procedural complaint about lack of notice of a dishonesty allegation was not an obvious issue that the ET was required to raise of its own motion, had not been argued below and therefore should not be admitted on appeal; even if it were entertained, the ET's finding of dishonesty and its consideration of the whole dismissal process meant the dismissal was within the band of reasonable responses.

Appeal from an Employment Tribunal judgment of Employment Judge Anstis (judgment promulgated February 2021). Permission to advance the specified grounds was granted by the Deputy High Court judge prior to this EAT hearing. Neutral citation for this EAT decision: [2025] EAT 11.