Ray Joseph v The University of Aberdeen

An Employment Tribunal errs in law by striking out a direct discrimination claim about the retraction or lapse of a job offer without considering whether an admitted alteration to relevant correspondence bears on that claim. A point of law not raised before the Tribunal will ordinarily not be entertained on appeal, save in exceptional circumstances; examples of such circumstances are not exhaustive. For the purposes of principal liability under Equality Act 2010 s 109, an agency relationship is assessed under common law principles. Funding a post or involvement in its creation does not, without evidence meeting those principles, establish agency. A narrow procedural error, without unfairness or a fundamental flaw, may be remitted to the same Tribunal.

Ray Joseph, a tennis coach, applied to the University of Aberdeen for a tennis coordinator post. After the University did not progress his application, he brought claims of direct and indirect discrimination, harassment and victimisation. The University admitted that an employee had altered one email in the correspondence about an alleged job offer. The Employment Tribunal struck out the claims and refused Joseph’s application to join the Lawn Tennis Association (LTA), which had funded part of the post.

The EAT appeal was initially sifted out, but Judge Clarke permitted grounds concerning strike-out and joinder to proceed after a Rule 3(10) hearing. The University conceded the strike-out ground, which was confined to the direct discrimination claim arising from the circumstances in which an offer might have been retracted or allowed to lapse. The remaining issue was whether the Tribunal erred in refusing to join the LTA, including on the asserted principal-agent relationship.

The appeal was upheld by consent only on the strike-out ground. The challenge to the refusal to join the LTA was refused. The direct discrimination claim, if any, concerning the retraction or lapse of a job offer was remitted to the same Employment Tribunal.

1. Strike-out. The Tribunal had focused on whether all the documents about the offer were fabricated. The admitted alteration to one email raised a separate question: whether the circumstances surrounding the offer’s retraction or lapse could support a direct discrimination claim. The University conceded that striking out that part of the claim without addressing that question was an error of law. The EAT made no determination of the claim’s merits.
2. New points on appeal. A party will not ordinarily be permitted to raise a point of law on appeal that was not advanced before the Employment Tribunal. The EAT may entertain a new point in exceptional circumstances. Examples include manifest injustice, a knock-out point, a discrete point of law requiring no further inquiry, or deception or unfair conduct; the examples are not exhaustive. Here, the claimant remained able to pursue a more limited claim against the University, and no manifest injustice was shown in refusing to entertain the new agency argument.
3. Joinder and agency. The University’s acceptance that it was the correct respondent, and the fact that it would have employed the claimant, did not by themselves prevent joinder of another respondent. But a principal-agent relationship had to be established. For s 109 of the Equality Act 2010, the relevant approach was the common law agency principles described in Handa v the Station Hotel (Newcastle) Limited & ors [2025] EAT 62. The evidence did not permit an inference of such a relationship. Funding the post and involvement in its creation did not satisfy the legal criteria. The refusal to join the LTA therefore disclosed no error of law. The claimant also had no live indirect discrimination claim to which the LTA could be added.
4. Remittal. Applying the test in Sinclair Roche & Temperley v Heard [2004] IRLR 763, the EAT considered whether a fair hearing remained possible, the nature and extent of the error, and whether the decision was totally flawed. The error was narrow and procedural, and there was no suggestion of bias or other fundamental flaw. Remittal to the same Tribunal was consistent with the overriding objective.

1. Employment Appeal Tribunal: In [2026] EAT 113 , the appeal was allowed by consent on the limited strike-out ground. The LTA joinder ground was refused, and the remaining direct discrimination issue was remitted to the same Tribunal.
2. Employment Appeal Tribunal, Rule 3(10) hearing: After the appeal was initially sifted out under Rule 3(7), Judge Clarke allowed the strike-out and joinder grounds to proceed to a full hearing, limiting the strike-out ground to the direct discrimination claim concerning retraction or lapse of an offer.
3. Employment Tribunal: On 6 September 2024, EJ Wiseman struck out the claimant’s claims and refused his application to join the LTA.