Jamshid Aslam v Transport UK London Bus Ltd

A tribunal must identify claims by an objective and practical reading of the pleadings. A claim may encompass a closely related statutory route where it arises from the same pleaded facts and differs only in the respondent’s reason for acting, especially where that reason lies within the respondent’s knowledge.

On reconsideration under the Employment Tribunal Rules of Procedure 2013, the interests-of-justice inquiry requires a broad assessment. The tribunal must weigh prejudice to both parties and the public interest in finality. A supposed pleading defect is not conclusive. Where the established facts prove a closely related claim, no further evidence is required, and the respondent has suffered no procedural unfairness, the tribunal should ordinarily permit any necessary amendment and preserve the judgment.

The claimant was conditionally offered employment by the respondent bus company. The offer was later withdrawn. He alleged direct race discrimination and victimisation under section 27 of the Equality Act 2010.

The Employment Tribunal initially upheld victimisation. It found that, because of the claimant’s earlier tribunal proceedings and an email questioning differential treatment by race, the respondent believed he might make a protected act in future. On the respondent’s immediate reconsideration application, the Tribunal dismissed the claim. It held that only a claim based on protected acts already done had been pleaded.

The claimant appealed. The central issues were whether the pleaded case included victimisation based on a belief that he might do a protected act, and whether reconsideration and dismissal were necessary in the interests of justice.

1. Appeal allowed. The Tribunal erred in holding that the claim it initially upheld fell outside the pleaded case. The Grounds of Complaint alleged all material facts, including the earlier tribunal claim, the email, and the respondent’s communications about avoiding future issues.

2. The distinction between detriment because a claimant has done a protected act under section 27(1)(a) and detriment because the respondent believes that the claimant may do one under section 27(1)(b) was exceptionally narrow on these facts. Both formulations concerned the same conduct and the same withdrawal of the job offer. They differed only in the respondent’s precise reasoning, a matter peculiarly within the respondent’s knowledge. Applying the approach to pleadings in Chandhok v Tirkey [2015] ICR 527 and Moustache v Chelsea and Westminster Hospital NHS Foundation Trust [2025] EWCA Civ 185, the pleaded case included the section 27(1)(b) basis of liability.

3. The Tribunal also misdirected itself on reconsideration under rule 70 of the Employment Tribunal Rules of Procedure 2013. The interests-of-justice test required a broader assessment than whether the point had been expressly pleaded. Following Phipps v Priory Education Services [2023] IRLR 851, it required consideration of the respective injustice to the parties and the public interest in finality.

4. The Tribunal treated the pleading point as conclusive. It did not consider whether to allow an amendment, although the section 27(1)(b) claim required no new facts or evidence. The respondent had had a fair opportunity to address why it withdrew the offer, did not contend that different evidence was needed, and did not challenge the factual finding that it acted to avoid a future discrimination complaint or claim.

5. The only permissible exercise of discretion was to allow the initial decision to stand, with amendment if necessary. The reconsideration decision was revoked, the initial judgment that the victimisation claim succeeded was reinstated, and the claim was remitted to the Tribunal for remedy.

• Employment Appeal Tribunal: Allowed the claimant’s appeal, revoked the reconsideration decision, reinstated the initial finding of victimisation, and remitted remedy to the Employment Tribunal.
• Employment Tribunal, London South: Initially upheld victimisation but dismissed direct race discrimination. On reconsideration under rule 70 of the Employment Tribunal Rules of Procedure 2013, it varied its decision and dismissed victimisation on the basis that the successful section 27(1)(b) claim had not been pleaded.