Clarity in complaints
Labour & European Law Review Weekly Issue 298 06 December 2012
Before submitting a tribunal complaint, claimants have to set out the issues that they want to raise on a specific form. The Employment Appeal Tribunal (EAT) said in United Learning Trust v Rose that unless claimants set out their complaints and allegations with clarity and precision, tribunals cannot consider them.
Ms Rose started work for the United Learning Trust as a science teacher at its Lambeth Academy in September 2007. In April 2010 she submitted a tribunal claim for race discrimination and “other complaints”, which included a reference to an unsatisfactory lesson observation by another teacher, Mr Petch, in November 2009.
The claim form did not give ULT any real detail and the tribunal ordered her to provide further particulars. She then lodged a 12-page document which contained a specific complaint about the lesson observation which stated that: “As a result of the unsatisfactory observation the Claimant compiled a response to the findings of the observation which was sent to Mr Petch, the Principal and the Claimant’s union representative. The Claimant did not receive a response.”
Ms Rose did not state that this amounted to “inconsistent treatment” or “less favourable treatment”, unlike other paragraphs in her statement where she made specific allegations of treatment inconsistent with white colleagues.
The tribunal rejected all the allegations of race discrimination, except the one relating to Mr Petch’s failure to reply to her e-mail about the lesson observation.
It found that the reason was a fear that Ms Rose would bring a complaint (she had copied the union into her e-mail) and concluded that it was her race/colour and the fear of a race claim that resulted in his failure to reply.
The school appealed on the basis that Ms Rose had raised the issue relating to the lesson observation as a matter of background or general complaint in her tribunal claim, and that “it was not for the Tribunal to decide issues which were not before it or re-characterise what was merely a matter of background as a cause of complaint”.
And the EAT agreed, saying that Ms Rose had not “properly or sufficiently” raised the failure to reply to the e-mail as an allegation of race discrimination in her claim form.
Her complaint about the lesson observation had centred on the school not giving her the opportunity to have follow up sessions on pupil progress and had nothing to do with not replying to an email. It was therefore “neither permissible nor appropriate to treat the issue as encompassing failure to reply to the email”.
Acknowledging the difficulties faced by advocates and tribunals when claimants allege discrimination over a long period covering a wide range of complaints, the EAT said that:
“If justice is to be done to both sides, it must be clear by the time of the Tribunal hearing which specific allegations are said to be instances of direct discrimination. Requiring clarity serves those who bring claims - for otherwise matters of importance may be missed. Fairness requires that those who face allegations of race discrimination know what they are. Precision is necessary if the parties are to make informed decisions on questions of evidence and submissions and if the Tribunal is to deal with the issues properly”.
As the failure to reply to the e-mail was not listed as an issue, the tribunal had been wrong to follow it up.
This case demonstrates once again the importance of carefully particularising allegations of discrimination and clearly defining the issues in a case. It is not for a tribunal at a hearing to make findings on matters beyond those set out in the claim form and particulars of allegations or issues.