1. Did the employee do a protected act?
2. Did the claimant suffer a detriment?
3. Was the reason for the detriment because of the protected act?

In a recent decision (Leighton v Renfrewshire Council) there has been some helpful consideration and explanation of the first and third of these questions.

The relevant factual background of the case is relatively simple. Mr Leighton was a council employee and part of an autism support service. In the midst of the Covid pandemic Mr Leighton offered to help a disabled tenant pack up and move house while renovations were underway. This was not part of his job but he obtained Council approval to do so.

The Claimant alleged victimisation because he had done a protected act (helping the tenant pack and move belongings) and was subject to a detriment because of that act in that he was moved to alternative duties. It was not disputed that the move to alternative duties was a detriment, and so the case turned on the question of whether the assistance packing belongings was a protected act and, secondly, whether the reason for the detriment was because of the protected act or some other reason. The ET found against Mr Leighton on both these questions these decisions were challenged in the appeal.

A Protected Act?

In practice, the concept of a protected act is often treated as being similar to a blowing of the whistle (qualified disclosure) – that there is some form of complaint. In the ET the tribunal asserted that helping a disabled person was not itself a protected act but was poorly reasoned. To be a protected act the act must be one of the four types of act provided by section 27(2) of the Equality Act 2010.

Last year, in a different decision the EAT found that for a protected act there was no absolute requirement for a claimant to mention or directly allege discrimination and whether an act is the protected act is based on a fuller consideration of the fact of a case (Kokomane v Boots Management Service Ltd [2025). Although not referenced in the Leighton case that is an important corrective to the view sometimes expressed that discrimination or the Equality Act needs to be mentioned for an act to be a protected act.

The EAT in Leighton had little difficulty in accepting that the claimant in asking his manager if he could assist the tenant especially in the context of the local authority’s own Equality Act obligations under the Public Sector Equality Duty (section 149 of the Equality Act).

One feature of the decision that is noteworthy is the nature of the protected act points to two often overlooked features of the victimisation:

1. Firstly, it is very often the case that a complaint is advanced on the basis that an employer is penalising the claimant because they complained about discrimination they are experiencing. But this is in no way necessary. For example, a trade union representative who supports a member in a grievance about alleged discrimination will be very likely to have done a protected act and if they are themselves put to any detriment because of that support that can also be victimisation (the instinctive claim here would be detriment for trade union activities but a victimisation case may be better as the causation test is easier to meet (in victimisation the protected act must be a material cause for the treatment, but in a TU detriment case it must be the sole or main purpose of the treatment).
2. Secondly, although most of the examples of a protected act include the provision of information (“bringing proceedings”, “giving evidence of information” or “making an allegation”) the scope also includes a much broader category of “doing any other thing for the purposes of or in connection with this Act” (section 27(2)(c) Equality Act) – which means the protection is much wider than just protection if you make a complaint or give evidence. Because the liability can attach to protected acts made outside of current employment (e.g former employers) it is not just limited to acts concerning the employer directly. There is I think scope – but there have been limited cases on this – where broader campaigning and protests activity (if lawful) would amount to a protected act so long as related to the Equality Act 2010.

But for?   

In Leighton the claimant won on the argument that helping a disabled tenant was a protected act for which he could not lawfully be penalised for, but nevertheless the EAT still found his case was overall unsuccessful. Why?

The claimant made the argument that had he not asked to assist and assist the disabled tenant the negative treatment he complained about (the temporary job move) would never have happened. This is a ‘but for’ legal argument. The detriment was caused by the protected act because but for the fact of that complaint the issue would not have arisen.

This is a very common (and natural) argument for claimants but the decision of the EAT is robust in rejecting this. It is not enough to show that the treatment a claimant is complaining of would not have happened if the protected act had not taken place – it must be shown that the real reason for the treatment was the act itself and not some issue related to it. In this case, the EAT found that there was no error of law in the ET’s decision that the real reason for the treatment was not the act of helping the disabled tenant but the fact of a later complaint about the claimant’s conduct which was a different reason.

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This blog is specifically intended for the benefit of trade union reps and members but I hope will be of interest more widely to other advisors, and workers. If you are not a union member then now is a good time to put that right, the TUC offers help selecting the right union to join (although feel free to message me if you’re unsure about what’s best and I am happy to make a suggestion depending on your circumstances).

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As para 3 of the Guidance explains:

Interim relief is an emergency measure. It is not an injunction/interdict, although it operates in a similar way, in that it prevents a dismissal from taking effect until the tribunal has heard the complaint of unfair dismissal. If interim relief is granted, the tribunal may order the employer to reinstate the claimant or to re-engage them in an equivalent role, or the tribunal may make a “continuation of contract order” (which has the effect of keeping the employee suspended on full pay until the full hearing). Because of the effect of those orders, there is a high threshold for claimants to satisfy the tribunal that interim relief should be ordered. Most applications therefore do not succeed.

The Presidential Guidance, which can be read here, has been issued in response to an increase in the number of applications received and the complexity of the evidence. There used to be, it states, perhaps 20 interim relief applications a year and now each separate tribunal receives as many a month (para 4).

The guidance summarises:

• the legal claims in which an interim relief application can be made (para 7 and 8)
• that an application must be made within seven days of the effective date of termination without exception (para 11)
• That if the claim is of trade union dismissal the claim must be accompanied by a certificate from an authorised union official (para 12)
• ACAS Early Conciliation is not required for a claim but the exemption does not apply to any other claim made on the same form (para 14 and 16).
• That an interim relief judgement is not an easy one to get and that the legal threshold is a difficult one to meet (para 19-20).
• That the tribunal will expect only key evidence to be deployed and hearings will be short (para 27-28).

There has been some discussion for a while there has been an uptick in interim relief applications. I do not necessarily see that as a bad thing in itself. That there were only 20 such application a year surprises me and does feel on the low side to me – I would expect more to have been made and in the right case (and I think certainly more than 20 a year) an interim relief application is a powerful tool for members (I have written about one such case before brought by the UVW union). So the increase is not a bad thing, it means more claimants who do actually have a good case that they meet the high threshold have a chance of obtaining this important remedy.

The problem historically was even if a claimant had access to legal advice by the time that advice was received the seven day window for an interim relief application had passed. It was ignorance of rights that caused the historically low number of applications. So, if AI has increased awareness of the right then I think that is a good thing.

Still, it serves no-one for cases that do not have a reasonable case of meeting the high threshold (Taplin) of using up tribunal time that will produce no result except delaying the case and other cases. The new presidential guidance should be essential reading for any employee representative who may be asked about interim relief. And, if you are a claimant contemplating you must not delay an application but, if you can, please read the guidance carefully before doing so – the guidance accurately reflects the law.

Most interim relief applications fail because it is not very likely that the tribunal will find the dismissal was automatically unfair without hearing all the evidence. In the case I referred to the there was damning primary evidence (an audio recording) that the reason was union activity. That is the type of evidence often required to allow a tribunal to find interim relief should be granted.

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The Free Representation Unit (FRU) is a charity dedicated to providing free legal representation to those who cannot afford to pay, before Tribunals in the Greater London area where legal-aid is unavailable. Founded in 1972, FRU is one of the country’s foremost providers of free legal service.

This blog is specifically intended for the benefit of trade union reps and members but I hope will be of interest more widely to other advisors, and workers. If you are not a union member then now is a good time to put that right, the TUC offers help selecting the right union to join (although feel free to message me if you’re unsure about what’s best and I am happy to make a suggestion depending on your circumstances).

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As a union rep I also at one point tried to get the union to support a challenge on this point (which I think has potential indirectly discriminatory aspects with reference to the protected characteristics of sex, disability and potentially age) but that fizzled away. At the time I did research ET decisions on the point and they were varied and inconsistent on the issue so it is nonetheless good to have this position subject to a declaration.

My view then was that, without something more (e.g. an express notification of its availability on or before the payment date), the practice was inconsistent with the statutory right. I still think that is right but the Employment Appeal has now disagreed with that argument so that has put me back into place!

The specific statutory right in section 8(1) Employment Rights Act 1996 is that “A worker has the right to be given by his employer, at or before the time at which any payment of wages or salary is made to him, a written itemised pay statement.”

The specific issue in Leedham is whether an electronic access to the payslip to which a worker can choose to access satisfies the right “to be given” an itemised pay statement. On the central issue of whether the EAT found:

I accept the respondent’s submission that in principle the statutory obligation may be satisfied by electronic means. Consistently with the authorities recognising that delivery or provision may in an appropriate context be effective constructively, there is no requirement in section 8 that the document be physically transferred to the worker.

However, it continued (emphasis added):

It is both correct and important to recognise that section 8 requires the information to be given in a form which the worker can in practice access. A system which, whether by reason of cost, technical barriers, or other constraints prevents an individual employee from obtaining their payslip would not satisfy the statutory purpose. Equally, a system which imposed specific or material costs on the employee as the price of access in their entitlement or which required them to undertake obligations going beyond what is reasonably incidental to receipt might in an appropriate case fall short of compliance.

This emphasis on the practical accessibility is a key qualification and it is wrong to assume that an electronic pay statement will always discharge an employer’s statutory obligation. To give a practical example, if a worker is genuinely digitally excluded (and there is significant research that this is a very real issue for some) I can imagine that same system accepted in Leedham may may on different facts related to a worker prove to be a breach. In fact, the judgment recognises that possibility saying [at 32] “There may well be circumstances … where an individual employee has a specific difficulty which prevents them from using that method.” I happen to think the fact that that is a possibility is an argument against the position the EAT adopted and introduces an uncertainty for employers.

One area where I have seen infractions of this right is in circumstances of extended worker absence from the workplace, be that sickness, maternity and paternity leave, or extended breaks (the very times there is more likely to be pay disputes and adjustments). Do workers at those times have reasonably unimpeded access to the material? Of practical relevance for employee representatives is whether an employee has unimpeded access to this material at those times (for example, does an employee have to use employer IT equipment to access?).

The upshot of the decision is that while clarifying what was a slightly academic uncertainty it means where there are concerns about compliance then this needs to be founded either on ways an employer systems generally impose unreasonable conditions to access pay statements or how individual circumstances similarly impede access.

___

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Have you found this article helpful? If yes, I’d love hear from you but also request you would consider showing your appreciation by donating to the Free Representation Unit here: Donate – Donation amount – JustGiving.

The Free Representation Unit (FRU) is a charity dedicated to providing free legal representation to those who cannot afford to pay, before Tribunals in the Greater London area where legal-aid is unavailable. Founded in 1972, FRU is one of the country’s foremost providers of free legal service.

This blog is specifically intended for the benefit of trade union reps and members but I hope will be of interest more widely to other advisors, and workers. If you are not a union member then now is a good time to put that right, the TUC offers help selecting the right union to join (although feel free to message me if you’re unsure about what’s best and I am happy to make a suggestion depending on your circumstances).

If you are among the number of employment lawyers and paralegals who
work in the legal sector following this blog why not join the Legal Sector Workers United (LSWU)?

If you have found  this post or site helpful please think about subscribing to the email list by entering your email address below or by liking the blog on Facebook.

This high percentage shows how an understanding of disability discrimination is such an important part of the employee advisor’s repertoire. 50% of advice requests are likely to be on this one strand of claim. The recent decision of the Employment Appeal Tribunal in Cunningham v British Broadcasting Corporation [2026] EAT 92 although not ground-breaking is noteworthy and raises four important points helpful for union reps, advisors, and claimants about disability discrimination.

Facts of Case

The claimant was employed as an announcer for BBC Scotland; she was a disabled person because of type II diabetes from at least June 2023. The BBC operated a work rota over 8 week cycles in which announcers had to work a range of shifts, some early (from 5am) and some very late to 3am in the morning). The Claimant found this difficult because of fatigue linked to disability and the employer adjusted her shifts except (by agreement) on one shift that ended at half past midnight.

On 7 June 2023 the claimant made a mistake meaning a live news report started 45 seconds late. This mistake was the subject to a formal disciplinary process from 15 August 2023 although at the end no formal action was taken against her.

In August 2023 the claimant began a sickness absence and the BBC received Occupational Health advice that the claimant should not work the late shift as it was harmful to the Claimant’s health. The facts are not entirely clear but it appears that the requirement to work the later shift continued as at November 2023 when the Claimant started her ET claim.

The claimant’s case was that 1) the decision of 15 August 2023 to commence a disciplinary process was materially caused by her diabetes related fatigue and so was discrimination arising from disability (section 15 Equality Act); and 2) that the BBC’s requirement to require the Claimant to work the one late shift was a failure to make adjustments.

The ET dismissed the claimant’s discrimination claim on the basis that the mistake in the late news airing was not materially caused by her diabetes related fatigue and, if it were, the treatment would have been proportionate. The ET dismissed the claimant’s reasonable adjustments case because it found that the Respondent did not know know the Claimant was a disabled person the requirement to work late put the claimant to a substantial disadvantage.

The Claimant appealed these decisions to the EAT who upheld the appeal about reasonable adjustments but dismissed the appeal about discrimination arising from disability.

There I think four main lessons we can take from this case from an employee perspective.

Lesson 1 – Proving Causation is a challenge

In a case like this the claimant was required to prove that there was “unfavourable treatment” (here the disciplinary investigation), that the reason for the treatment was because of “something” that arose because of disability. Unlike in a direct discrimination case a claimant does not need to show they were treated “less favourably” than others – treatment meted out to anyone which is unfavourable is enough. In this case even without a sanction being alleged to have engaged in misconduct is obviously “unfavourable” (no-one really relishes the prospect of being accused of wrongdoing!).

Again, the cause of the treatment (the “something”) is pretty clear. The claimant was 45 seconds late running a live news segment, that was the “something” that was the reason for the disciplinary investigation.

So far, so good. But where the claimant fell into difficulty (and this is a crucial part of the case that claimants often forget to think through) is how to prove that her mistake was actually materially caused by the claimant’s fatigue that was itself caused by the claimant’s disability. Unless the Claimant could prove that (on the balance of probabilities) then her claim would fail and that is exactly what happened. In this case the employer (by asking for Occupational Health advice) reasonably investigated the suggestion that her fatigue contributed to the mistake and the tribunal accepted there was insufficient evidence to prove this was a cause.

This is an area I frequently see claimants and workers falling into difficulties – real thought needs to be given as to what the evidence shows and how the disability causes the “something” and how that will be proven. Sometimes the only evidence is a claimant’s oral evidence but this is often the key battleground in misconduct related discrimination arising claims and so early thought on how this will be proved is vital.

The causation requirement in discrimination arising from disability is a broad one and so this is never a clear cut issue (see for example the decision here and here) but I am noticing a trend where Tribunals are being more robust in rejecting claims on a “misconduct was caused by disability” type case.

Lesson 1: If you are going to argue misconduct was caused by disability issues then a priority at an early stage is to consider what evidence you can bring in addition to your own statements to allow you to convince a tribunal (or indeed internal disciplinary chair) that that is the case.

Lesson 2 – Be Proportionate

In a discrimination arising from disability the claimant need to prove the fact of the unfavourable treatment caused by “something” arising in consequence of disability. But that does not mean the case is won, just that the first hurdle is successfully vaulted. The employer can still argue that the treatment was a proportionate means of achieving a legitimate aim.

In this case the ET found that even if they were wrong on the causation point the case would have still been unsuccessful and I think it is fairly easy to say why they thought that. In the context of the business they operating in a 45 second delay of a live television report to potentially thousands of viewers is a serious issue and justified investigation. That investigation was (apparently) conducted reasonably and came to the conclusion that a disciplinary sanction was not necessary. The unfavourable treatment was not a warning or dismissal but a subjection to a fact finding investigation that found in the claimant’s favour.

Here is where I may have criticism levelled at me – it is certainly possible that subjection to an investigation would fail this test. However, where the unfavourable treatment is more minor, and is the first such instance, I question whether there was ever a reasonable prospect of the treatment not being justified. This requires (not always easy for a claimant representative!) putting oneself in the shoes of the employer.

Lesson 2 – Where treatment is of a less invasive nature (e.g., investigation rather than formal warning) and this is a one off treatment it will often (but not always) be the case that this treatment will be justified and so a claim is unsuccessful at the justification stage (if there were repeated investigations for example the position might be different). Claimants should think carefully how they will argue that the treatment was not proportionate and if not likely think whether to pursue the complaint.

Lesson 3 – Knowledge of impairment

This is probably the most important (and helpful) aspect of the decision. In an email in April 2023 to the employer the Claimant had (mistakenly) said of her Type 2 diabetes “which is, I’m sure you are aware, classed as a disability?” As as been discussed before diabetes may or may not be a disability An employer is only under a duty to make reasonable adjustment when it knows (or should know) that the employee is disabled (that is, in the main, when she meets the definition in section 6 Equality Act 2010).

This is explained in paragraph 22 of the judgment:

Those facts have three elements to them, namely (a) a physical or mental impairment, which has (b) a substantial and long-term adverse effect on (c) his ability to carry out normal day-to-day activities. Whether those elements are satisfied in any case depends also on the clarification as to their sense provided by the statutory definition of disability. If the employer has actual or constructive knowledge of the facts constituting the employee’s disability, the employer does not also need to know that, as a matter of law, the consequence of such facts is that the employee is a ‘disabled person’.

This legal test is then played out and applied in paragraphs 33 to 36.

It was not until December 2023 (after the ET claim had been made) that the BBC received occupational health advice that the claimant was likely to be disabled. It is almost always in an employee’s interest to agree to occupational health assessments for the purpose of identifying possible adjustments at work. However, in larger organisations there is a tendency for employers to defer decisions on whether to make disability adjustments until after a report gives advice on the issue. What this case shows is that is not legitimate excuse for not acting on disability. The BBC was under the duty to consider and make adjustments for disability at the point it knew (or should have known) the three elements (i. physical and mental impairment, ii. substantial and long term adverse affect , and iii. on ability to carry out normal day to day activities) – which was in June 2023, not when someone else had given advice a person was disabled (in this case six months later, in December 2023).

This is the important practical implication of the case. Occupational Health reports are great and helpful, but if an employer is (whether by design or ignorance) postponing decisions on adjustments under the cover of need for a definitive OH report this needs to be challenged. This is in my experience very much a persistent issue in larger bureaucratic organisations that employee reps and employees need to be alert to. In this case it is likely that a reasonable step (and a pragmatic one too) would have been to waive the late shifts from June 2023 until at least definitive OH advice was received. From an employee representative point of view, faced with these cases it is likely submissions on the basis that it is better to err on the side of caution and assume [on a holding pattern basis] that adjustments are required to give the benefit of the doubt to a claimant (which is what the EHRC Code on Employment recommends [at para 6.9]) and, of course, also avoid the real risk to an employer that its deference to a delayed future OH places the employer in actual breach of the duty to make reasonable adjustments (which is what I strongly suspect the remitted ET will find happened here).

Lesson 3: OH reports are a resource to be used by employees to advance case for need for adjustments but there is a need to be alert to fact that duty to make adjustments arises when an employer knows the three elements of disability which can be months before a report confirms the same. Employees need to advocate for adjustments to be made when that knowledge is actually held. OH reports should not be used as an aid not an obstacle for the provision of disability support for employees.

Lesson 4 – The Sting in the Tail

In discrimination a complaint is made about an act of discrimination. The term “act” is defined in section 212(2) Equality Act 2010 saying that a “reference (however expressed) to an act includes a reference to an omission”. In short an act of discrimination can be because an employer did something or did not do something. This is important because in every discrimination complaint there are time limits from the date an act occurred in which the employee needs to start any legal challenge (currently within three months but helpfully this will soon become six months). This present a challenge for workers – it is much easier to complain and recognise acts an employer does to you (for example, giving a disciplinary warning, shouting across an office, dismissing you) compared to an act the employer does not do to you (for example, not inviting you to meetings, not offering a developmental opportunity, and other hidden ‘acts’, etc). The difficulty is by the time you discover you have been left out it may be weeks or even months after the fact and by then the time limit for challenge may already have passed.

For reasonable adjustment complaints this is a very particular problem (and one I think needs reform as the current system forces employees into litigation at a time time issues can reasonably be avoided and resolved). Although a discriminatory act can be both an act or a decision not to act (an omission) in practice discrimination claims tend to focus more on overt acts of an employer (dismissal, disciplinary warning, rejection of job application, offensive comments being made). By contrast, a complaint about reasonable adjustments is always an omission (the employer should have done something but failed to do so).

This raises the question of when time starts ticking for challenge to a claim. The answer is when a decision not to do something is taken, the employer does something inconsistent with the decision or at the end of the period the employer “might reasonably have been expected to do it” (section 123(3) and (4) Equality Act 2010). At the risk of showing my age this asks an employee to adopt Mystic Meg type psychic powers. An employee is required to identify when a decision they do not know was taken was taken or add to an unknown date an imprecise reasonable period in which an act should have occurred.

Why then does the Cunningham v BBC case demonstrate a sting in the tail? Simply because the duty to make reasonable adjustments becomes a legal duty on when 1) the employer knows the employee is disabled (the three elements needed not the medical diagnosis which may come later, if at all), 2) The employee is put to a substantial disadvantage under one of the three reasonable adjustment types (PCP, Auxiliary Aid, Physical feature). It is at the point where that knowledge is held the the time limit start potentially ticking. For this reason the BBC argued the claimant’s case was out of time in the context of what the EAT found to be failures by the BBC to ask timely questions.

This is why time limits in reasonable adjustment in discrimination cases are so tricky and a minefield for claimants. The time limit for a discrimination complaint about an omission starts at a set point in time (even if the claimant does not know what that point in time is) and does extend for all the time that an omission continues. In an important Court of Appeal judgement on this issue recognised that this has the of encouraging claims to be lodged at a much earlier point in time to avoid the risk of being out of time:

claimants and their advisers need to be prepared, once a potentially discriminatory omission has been brought to the employer’s attention, to issue proceedings sooner rather than later – Matuszowicz v Kingston Upon Hull City Council [2009] EWCA Civ 22.

As an employment lawyer for a pro bono charity I see many claims from claimants who have not had any previous union or legal support – it is sadly not uncommon for employees to work for years without reasonable adjustments (often very simple to implement) and complain very late on (for example after a lengthy grievance procedure) and then be faced with substantial difficulties even getting a hearing on their complaint.

Lesson 4: Because time limits for omissions can be very difficult to identify and delay can prevent a claim being heard it is vital for employees to assume a legal complaint will be required from an early stage to ensure they do not fall victim to the late claim trap. If you think your employer is not making reasonable adjustments for you and they have all the information to have the knowledge required to be under the reasonable adjustment duty then don’t be complacent and get early advice so you can protect your legal right to challenge an employer.

Sadly this is not the way employment law should work and it is the way the law currently operates as a trap for the unwary leaving good claims at risk of not progressing because preferred to try to resolve issues in the workplace before considering legal challenge.

Want to stay updated or found this helpful? 

Have you found this article helpful? If yes, I’d love hear from you but also request you consider showing your appreciation by donating to the Free Representation Unit here: Donate – Donation amount – JustGiving.

The Free Representation Unit (FRU) is a charity dedicated to providing free legal representation to those who cannot afford to pay, before Tribunals in the Greater London area where legal-aid is unavailable. Founded in 1972, FRU is one of the country’s foremost providers of free legal service.

This blog is specifically intended for the benefit of trade union reps and members but I hope will be of interest more widely to other advisors, and workers. If you are not a union member then now is a good time to put that right, the TUC offers help selecting the right union to join (although feel free to message me if you’re unsure about what’s best and I am happy to make a suggestion depending on your circumstances).

If you are among the number of employment lawyers and paralegals who work in the legal sector following this blog why not join the Legal Sector Workers United (LSWU)?

If you have found  this post or site helpful please think about subscribing to the email list by entering your email address below or by liking the blog on Facebook.

Here’s the thing, when the factual background became clear she did have a really solid legal case, although had entirely failed to explain it in the form (although because there was a unfair dismissal claim too some of the claim could arguably by inferred by that context – Trustees of the William Jones’s School Foundation v Parry [2018, ICR 1807, CA).

Fortunately, we were able to prepare detailed particulars of claim and get these accepted as an amendment of the claim and in due course settle the case on terms the claimant was happy with. But going into that Preliminary hearing on a case that had no particulars advanced at all other than one solitary tick box completed for the main claim I was worried the claim could end up being directed for a strike out hearing on the basis the claim could not be responded to or otherwise be rejected.

Shortly after that hearing the EAT gave judgment in the case of The Scottish Ambulance Service Board v Chapman [2025] EAT 64. On 27 May 2024 submitted an ET1 form and ticked the box at section 8.1 of the form to say complaining about disability discrimination.

At section 8.2 (which needs to be completed) the claimant was asked to give “details of the claim, including relevant dates of events complained about.” The claimant did not do so.

When a claimant wishes to make a complaint of discrimination, they should tick the relevant box or boxes at 8.1 of the ET1 form. Later the judge ordered the claimant to provide details of the claim form pursued within 14 days (the ET therefore accepted the claim but made case management directions). The EAT was about whether, by doing that, the ET had made an error of law.

Rule 12 of the 2013 Employment Tribunal Rules of Procedure (the same Rule is now found in Rule 13 of the Employment Tribunal Rules of Procedure 2024) requires that the ET “must” refer the case for a decision whether claim form should be be rejected because “it cannot sensibly be responded to”. The employer argued that under this Rule the employer could not know what the complaint was about at all except that it involves disability and so could not be responded to. Therefore what the ER should have done is consider rejecting the ET1 claim form rather than asking the claimant for more details of the claim.

If a tribunal decides that a claim cannot be sensibly be responded to then the “Tribunal must reject a claim” (Rule 13(2)).

The judgment of the EAT was that “The complete absence of any information whatsoever about the nature of the claim, other than the fact that it is said to come under the heading of ‘disability’ means, for all the reasons advanced by the respondent, that it cannot sensibly respond” and therefore needed to be considered for rejection. The EAT continued that “follows that a case management decision to allow time for further particularisation of the claim to be made without the claim form having first been seen by an Employment Judge and that Judge being satisfied that the ET had jurisdiction in respect of the claim was also an error, as submitted under the second ground of appeal” (Paragraphs 17-18).

What the Case Means

It is a common (mis)perception that filing an ET1 claim just ‘starts the ball rolling’ and that all the substance of the complaint can be added to a claim later on. This case shows that can cause serious problems for claimants.

A case being rejected is different from a case being dismissed in that a claim can be remade with the Employment Tribunal if it has been rejected. This means that if a rejection is early enough a claimant can correct the errors, provide more detail, and remake the claim within the three month window that usually applies for making a claim (a good reason why not to leave claims to the last minute). But that is a best case scenario; with employment tribunal delays it is more likely by the time you are told there is a problem the time limit for making a valid claim is already expired and that means there will be future legal argument about whether the ET can continue be heard.

The key learning point for claimants and union representatives drafting particulars of claim (the description of events in part 8.2 of the ET1) is never to treat this as something to be completed later. It is OK not to be sure what the exact type of discrimination is, but you do and least need to set out the central complaints and facts about the case.

The ET have produced some explainer videos and this is a good one on how to make sure your ET1 claim form includes everything needed and therefore gives the best chance to avoid problems like that experienced by Mr Chapman – where not including relevant information in an ET1 form is not just an administrative oversight but could make or break the whole employment tribunal case:

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Want to stay updated? 

This blog is specifically for the benefit of trade union reps and members but I hope will be of interest more widely to other advisors, and workers. If you are not a union member then now is a good time to put that right, the TUC offers help selecting the right union to join (although feel free to message me if you’re unsure about what’s best and I am happy to make a suggestion depending on your circumstances).

If you are among the number of employment lawyers and paralegals who
work in the legal sector following this blog why not join the Legal Sector Workers United (LSWU)?

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If a claimant has an employment tribunal claim that has been submitted then they may withdraw this quite simply. Unlike litigation in other areas where there are formal forms that need to be completed to withdraw a claim, a simple email or oral communication in a hearing saying “I withdraw my claim”, or words that effect will suffice. A withdrawal, though informal in process, is fatal to a claim; the relevant part of Rule 50 of the 2024 Rules of Procedure make this clear, where: “a party advancing a claim informs the Tribunal, either in writing or in the course of a hearing, that their claim, or part of it, is withdrawn, the claim, or part, comes to an end.”

As explained by the EAT in Segor v Goodrich (2012) the only requirement for a withdrawal of an ET claim to be valid is that it is “clear, unambiguous and unequivocal.”  

Given the informality of the process to withdraw an ET claim it is not surprising that sometimes wires get crossed and the ET thinks a claim has been withdrawn when that is not the intention. You may have noted the requirement on whether a withdrawal is made is an objective one, is the withdrawal clear, unambiguous and unequivocal? It is not part of the requirement that the person giving the withdrawal intended to withdraw the claim – and this can get claimants, and especially unrepresented claimants in hot water.

In Segor the judge observed that “[l]awyers may sometimes be accused of being too pedantic and precise in their use of language” which may explain why those falling foul of inadvertent withdrawals are usually unrepresented.

To give an example, I once assisted (after the fact I should make clear, given the below!) a claimant who had unpaid wages claims against an employer. Subsequently, the claimant pursued new discrimination claims in a new ET claim form. The claimant agreed terms of settlement for the wages claim and this was settled by an ACAS  COT3. The settlement was for that first claim only and did not settle the second claim. However, the claimant sent an email withdrawing the claims (not claim) she had against the Respondent although her intention was only to withdraw the first claim (following settlement). However, the withdrawal while not intended was clear and unambiguous and so the discrimination claim was also automatically ended. Unfair as that outcome was, it was not a decision that could be confidently challenged and the language used was clear, unambiguous and unequivocal.

This case was brought to mind because a couple of days ago the EAT published another case on the issue – McCrory v Healthwatch Stockport Limited (2026). In that case the ETdismissed the claim because of a withdrawal.

In this case the context was clear the claimant did not unambiguously withdraw. Against the background of costs threats against a claimant in one email the claimant signalled the possibility of withdrawing saying “I can give consideration to withdrawing today”. In a later email on 31 May 2024 he said “I wish to confirm that I wish to  withdraw my claim … unless the tribunal would not apply a costs order”. That “unless” adds equivocation into the withdrawal and so could not properly be relied upon with clarification.  

Having seen that equivocal withdrawal an employment judge (quite properly) wrote to the claimant on 4 June 2024 to ask the claimant to clarify his position within 14 days. However, before that 14 day deadline had expired a ET legal officer (inexplicably given the 4 June 2024 correspondence) treated the claim as withdrawn and cancelled the upcoming hearing telling the claimant this on 9 June 2024.

On the next day, 10 June 2024, but not having seen the 9 June letter the claimant replied to the 4 June 2024 clarification request confirming he wished to proceed with the claim.    On 20 June 2024 a different employment judge directed that the claimant should be told the claim was now dismissed saying “the claim was unambiguously withdrawn. It was correctly dismissed on withdrawal”.

Reading the communication it is difficult to comprehend that the employment judge had read the emails in question as they are far from unambiguous and unequivocal, but that was the decision. As the EAT observes (para 57 of the judgment):

On a proper reading, the second email remained equivocal and any doubt falls away when it is read with the first. Accordingly, the only possible conclusion was that the claim had not been withdrawn. That meant that the claim did not automatically come to an end and there could be no judgment on withdrawal.

The EAT undoubtedly came to the right decision which means the claimant’s case has been reinstated, albeit with an 18 month delay.

What is clear that a claimant cannot always trust an ET to interpret written correspondence correctly (in addition to the legal officers three judges say they reviewed the files and two perversely interpreted an ambiguous withdrawal as being unambiguous).

The McCrory case does not add any new law but it is an important reminder of the importance of ensuring any correspondence with the ET is precise before it is sent – as this case shows you can’t assume the ET will know what you mean and, to be fair, they are working under such backlogs that they are less likely to have the time necessary to consider carefully.  

Given the harshness of the consequences of an unintended withdrawal of claim ending a case irrespective of its merits (which would be very unlikely to be allowed to be re-filed) it is always important to:

• Try not to draft and send an email straight away – take a break and re-read before pressing “send”
• If you are have more than one claim but only intend to withdraw one make that clear. For example, “I am writing to withdraw my claim under reference 1234567/2025. For the avoidance of doubt, I do not withdraw any other claims I have except under this reference number.
• If you are only withdrawing part of the claim again be specific on this. For example, “ I am writing to withdraw my complaint of unauthorised deduction of wages in claim reference 1234567/2025. The complaint’s I am withdrawing are at paragraphs 17-18 of the particulars of claim I submitted when making claim. All other claims in that claim are not withdrawn and I am still pursuing these.”

This of course seems simple advice – and it is. But it is advice that can make the difference between a claim being allowed to proceed to determination and one that is dismissed – even if that is not the claimant’s intention.

___

Want to stay updated? 

This blog is specifically for the benefit of trade union reps and members but I hope will be of interest more widely to other advisors, and workers. If you are not a union member then now is a good time to put that right, the TUC offers help selecting the right union to join (although feel free to message me if you’re unsure about what’s best and I am happy to make a suggestion depending on your circumstances).

If you are among the number of employment lawyers and paralegals who
work in the legal sector following this blog why not join the Legal Sector Workers United (LSWU)?

If you have found  this post or site helpful please think about subscribing to the email list by entering your email address below or by liking the blog on Facebook.

___

Charles Close was born in West Yorkshire in the 1820s and went on to become a boilermaker, a skilful and relatively lucrative profession.  Close was also became a member of the United Society of Boilermakers and Iron Shipbuilders, a trade union established in 1834.  The union, following intermediate amalgamations was to become part of the GMB Union.

Close was the treasurer for the union’s Bradford branch. In 1865 the union conducted an audit of the branch’s accounts and found that that Charles Close had embezzled £25 of union funds, this was a significant equivalent to several months’ wages.  After attempting to resolve without recourse to legal proceedings another union member, John Hornby entered the stage by commencing legal proceedings against Charles on behalf of the union; that legal challenge was to culminate in the  

John Hornsby was the union’s president of the Bradford branch. As an aside it is somewhat refreshing for those of us who have experienced the joys of trade union executive committees to see that internecine disputes was ever thus!

The Background context

McCunn describes the legal position of Trade Unions as existing “in a kind of legal limbo.” That is surely correct. But, the time unions felt much more assured on their position. In 1800 the Combination Act (the last of multiple statutes over the previous century) was an “An Act to prevent Unlawful Combinations of Workmen”. What was it that made a combination unlawful? The Act made one of the central unlawful acts clear, it was an offence for any worker “who shall at any time after the passing of this Act enter into any combination to obtain an advance of wages, or to lessen or alter the hours or duration of the time of working, or to decrease the quantity of work.” This struck at the core purpose of trade unions: to work together (combine) to improve working conditions, pay, etc! Trade Unionism was de facto an both unlawful and a criminal endeavour (albeit there is debate over the extent to which it was enforced).

The passing of the Combination Laws Repeal Act 1924 removed the threat of criminal prosecution for combining to improve working conditions in respect to wages and hours (but did not remove the risk of criminal conspiracy charges for other union interests such as such as threatening an employer with strike action to induce dismissal of non-union workers as the case of R v Byerdike (1832) 174 Eng Rep 61) shows).

Still the repeal gave hitherto underground unions the confidence to “come out into the open” (Vester and Gardner) and with that more amendable to pursuing legal redress.

However, aside from the taint of criminality context, the the United Society of Boilermakers and Iron Shipbuilders, like all trade unions was an unincorporated organisation. At common law that would have meant that the organisation could only take action if all of its members acted in concerned. As anyone who has been involved in trade unions such a level of unanimity is especially difficult to achieve but even more so for James Hornby and his fellow members since the prospective Defendant (Charles Close) was himself a member of the union which is akin to a defendant sitting on a jury hearing and deciding evidence against herself!

The problem for the union was however even more problematic in common law. As a member of the unincorporated body it was legally questionable whether Charles Close could steal from the union since the £25 belonged to the members, including himself.

Nevertheless, the union was in a bullish mood (McCunn) because it believed that Parliament had provided them standing to bring a case even without unanimous support of its members because of section 44 of the Friendly Societies Act 1855. Friendly societies burgeoned in the seventeenth and eighteenth centuries and are essentially organisation where members join together for a common purpose such as providing financial relief for members in need.

Section 44 of the Friendly Societies Act provided that so long as a society’s rules were deposited with the relevant body (which the Union had done) and the society was established “for any purpose that was not illegal” then the society could pursue legal actions in defence of their funds.

John Hornby had every reason to be confident in his standing to pursue a legal case under section 44 as in 1865 the union had secured a conviction against one William Warner who had been Secretary of the Leeds branch and had also embezzled union funds.

The Case of Hornsby v Close (1866 and 1867).

The union brought its case against Close in 1866 before Bradford Magistrates.  It does not appear that the issue of whether Charle Close had in fact stolen the £25  was considered. Instead, Charles resisted the union’s case on jurisdictional grounds.

Section 44 of the Friendly Societies Act 1855 only gave standing for a society to commence proceedings where that society has been established “for any purpose that was not illegal”. Whilst, following the repeal of the Combination Acts,  it may no longer to criminal to withdraw labour or induce the same to improve wages etc, a central purpose of the union was still to provide support to those against restraint of trade. That may not be criminal, but it was still illegal and therefore that restraint of trade illegality deprived the union of standing to rely on section 44.

Close’s argument was successful, and in January 1866 the Magistrates dismissed the claim.

Standing back from the legalities for a moment this is a remarkable course of conduct for a trade unionist to take (remember Close was not just a member but an active officer of the union). Some 40 odd years later the Osborne judgment (1909) would be issued, this was a case where a union member challenged the operation of his union’s political donations. Within trade union circles Walter Osborne’s legal challenge is viewed in an extremely negative light as an employer and Tory Party lackey (I think somewhat unfairly, as it happens, especially as he was a member of the Liberals). But here, a union member (although as a defendant rather than plaintiff), advanced a legal argument that struck to the heart of trade union modus operandi, and gave succour to one of the multitude of employers who would go on the seek to restrain the exercise of “combination” for the private end of escaping liability for having had the temerity to extract £25 out of the hand of his fellow union members. In a rogue’s gallery of trade unionists there are surely few who would command a more prominent position than Charles Close?

Predictably, the union were furious at the decision and there were allegations of anti-union bias. One respondent (with good reason) complained that the £25 theft was uncontested but ‘with £25 of our money in his pocket’ he now ‘huzza’d and scoffed at our society’ (McCunn). An appeal was launched funded by a levy upon members and George Mellish QC was appointed to argue the case, which was heard in January1867.

Relying on the precedent of a case a decade previous – Hilton v Eckersley (1855) – the Lord Chief Justice (of the Queens Bench) held that the union’s rule were contrary to public policy and, therefore, illegal even though he accepted they may not have been criminal.  The union rules providing as it did financial support for striking workers among other rules supported combinations of workers to restrain the trade of employers.

Hilton v Eckersley was a ‘combination’ case, but not of a trade union variety (although as McCunn notes the judgements very much had combinations of workers in mind notwithstanding the different subject matter of the case at hand).

In 1853 Nathaniel Exkersley was the Mayor of Wigan and a mill-owner. Factory workers in Wigan engaged in a strike to secure higher wages. Ecksersley and other employers organised a combination of employers, comprising 18 mill owners who promised that the approach to the strikes would be governed by majority agreement of its members and, should a member fail to do so, would be subject to a £500 penalty fine. One of those employers was Caleb Hilton. The mill-owners agreed to a ‘lock-out’ strategy. Striking workers were being starved into submission and workers approached Eckersley and proposed a return to work for half the sum sought in the strike. Eckersley was agreeable but the other employers were not, and so Eckersley resigned from the combination and re-engaged the striking workers. Caleb Hilton commenced an action to enforce the £500 payment which was defeated. The judges found the employer aims to be laudable but that they were unenforceable. The real focus of the decision was against the prospect of workers combining together. Thus Baron Alderson made the pointed comment in judgment that if such a bond against employers should be acceptable the courts would soon be being called to “legal effect to combinations of workmen for the purpose of raising wages, and make their strikes capable of being enforced at law.” And so, contracts facilitating a restraint of trade was unenforceable the “clinching argument against the bond was not that it was against the public interest per se, but that a similar contract made by workers would have ‘disastrous consequences’ for the nation” (McCunn).

Honby v Close gave the court the opportunity to direct the ratio of Hilton v Eckersley to what was the intended real subject: to determine that contracts (as a union rule book was) that encourage restraint of trade (of employers) was unlawful.

Aftermath

The judgment in Hornby v Close seized upon opportunity to give the judgment Hilton v Eckersley sought to provide. Union’s were tyrannical organisations that were depriving naïve members of genuine freedom by removing freedom to contract. Baron Alderson went on to say that by combining efforts and consolidating negotiating power unions were “oppressed by a majority of his fellow workmen.”

A union of workers was ‘illegal’ because by the Rules of the union the sought to facilitate collective action in furtherance of improved wages for all members and so this was against public policy in  that it denied the opportunity for employers to trade but, I suspect more pertinently, the freedom for workers to shoot themselves in the foot and further enrich employers). As Frederic Harrison argued (Harrison was a pro-union barrister) “the repercussions of Hornby reached far beyond the application of the 1855 Act. The judges had found that unions were ‘in their nature contrary to public policy’, to be ‘condemned and suppressed by the law’ just like ‘public nuisances and immoral considerations” (cited in McCunn).

Whilst not a major cause the Hornby v Close decision was an impetus for the establishment the following year of the Trades Union Congress in 1868 and attempts to secure passage of new legislation by Frederic Harrison. The increased franchise after the Reform Act 1867 and increased working class vote was seen as an impetus to press parliamentarians for a parliamentary resolution. The later passing of the Trade Union Act 1871 to (attempt to) remedy the effect of the common law moved the dial in the trade union’s favour but not decisively (see for example discussion in Russell v Amalgamated Society of Carpenters and Joiners [1912] UKHL 1026).

Sources:

Michael J Klarman, The Judges versus the Unions: The Development of Labor Law, 1867-1913, Virginia Law Review, Vol 75(8), (1989), 1487-1602.

J H McCunn, Hornby v Close (1867): Freedom of Contract and Freedom of Trade, Landmark Cases in Labour Law, (Eds J Adams-Prassl, A Bogg, and ACL Davies), Hart Publishing, (2022), 31-53.

A E Musson, The Congress of 1868: The Origins and Establishment of the Trades Union Congress, TUC, (1955).

John V Orth, English Combination Acts of the Eighteenth Century, Law and History Review, Vol 5(1), (1987), 175-211.

H Vester and A H Gardner, Trade Union Law and Practice, Sweet and Maxwell, (1958).

That caused a double take on my part because that would be a significant departure as previous authorities had been clear that the test was not a more than 50% chance but simply “a prospect” (for example, Leeds Teaching Hospital NHS Trust v Foster [2011] UKEAT 552_10_1406 which said there had to be “a chance” or “some prospect”). A reading of the Hindmarch judgment shows that the position has not really changed or narrowed at all.

Hindmarch was a case about an ambulance driver in the midst of the Covid Pandemic. He was vulnerable to covid because of asthma and had a anxiety related disability. All scheduled ambulance drivers (such as the claimant) were provided with FFP2 masks whereas unscheduled (because of higher risk) were given FFP3 masks which offered significantly more protection but had other limitations to their use. In giving the FFP2 masks the NHS Trust were following their policy. The claimant commenced sickness absence because of his anxiety. The claimant alleged that by not giving him FFP3 masks the trust refused to make reasonable adjustments.

The argument is certainly a cogent one and in other circumstances this may have been a reasonable adjustment. However, on the specific facts, the tribunal found that there was no real prospect that if the FFP3 had been offered the claimant would have been able to return to work (note the tribunal does not talk about balance of probabilities but no real prospect).The EAT succinctly explained the rationale at paragraph 61 saying “It  cannot be reasonable to require a party to make an adjustment that has no prospect of achieving the desired effect … there are cases, such as this one, in which the conclusion that the adjustment has no real prospect of making a positive difference provides a complete answer.”

Whether the assessment of the facts was correct is one matter, but on the question of law this is not a controversial decision. In the non-employment case of Paulley v First Group plc [2017] UKSC 4 the same position was set out that there must be at least a “real prospect” of the adjustment removing the disadvantage.

The reason Mr Hindmarch lost his case was not because the tribunal concluded the adjustment was unlikely to be successful but because it concluded it had no prospect of being successful. Had the tribunal’s decision of fact been somewhere between these two positions (for example, the adjustment was not likely to be successful but still had a real possibility it could be) then case outcome may well have been very different …  which is exactly the same legal position as before the recent Hindmarch decision.

This threshold for a reasonable adjustment claim (where prospects of success of the adjustment is one of the relevant factors that a employment tribunal will consider is a very helpful one to remember. Employer’s will often try to argue that an adjustment is not guaranteed to work, or is untested, as a justification for not making changes. For a worker seeking adjustments evidence that a change will help is of course very helpful but so long as there is a real prospect an adjustment could help that will mean there is a real question of reasonableness to be determined in an argument there has been a failure to make adjustments – and where as is often the case adjustments cost very little that may be a difficult argument for an employer to resist.

___

Want to stay updated? 

This blog is specifically for the benefit of trade union reps, and members but I hope will be of interest more widely to other advisors, and workers. If you are not a union member then now is a good time to put that right, the TUC offers help selecting the right union to join (although feel free to message me if you’re unsure about what’s best and I am happy to make a suggestion depending on your circumstances).

If you are among the number of employment lawyers and paralegals who
work in the legal sector following this blog why not join the Legal Sector Workers United (LSWU)?

If you have found  this post or site helpful please think about subscribing to the email list by entering your email address below or by liking the blog on Facebook.

Fully Unpaid?

For a while there was some uncertainty whether a non-payment of wages (bearing in mind the restrictive scope of what is and is not “wages” definition of wages in s.27(2) of Employment Rights Act 1996) which was settled by the Court of Appeal’s judgment in Delaney v Staples [1991] IRLR 112 (if a payment is a ‘wage’ and is payable then a complete non-payment is still a ‘deduction’). The Court put it in this way:

“Non-payment of wages due to an employee is a deduction from wages within the meaning of the Act. The Industrial Tribunal can entertain any claim by an employee that, in contravention of the Act, his employer failed to pay him at the appropriate time the full amount of the wages, as defined in the Act, which he ought then to have been paid.”

The Delaney v Staples case went on to be heard by the House of Lords but on a different (but important) point of law about notice pay which I will post on shortly but the decision on full non-payment being a deduction was not challenged in that later hearing.

There are quite a lot of circumstances where a deduction of wages complaint is possible but in most cases the complaint is of the type covered by Court of Appeal’s Delaney v Staples: For example, “I was due a 10% pay rise in September but didn’t receive any pay rise at all”, or, “my salary for August was £2,000 but I was not paid this.”

Partly Paid and Underpaid?

Sometimes an employer will only pay part of the wages that are due. For example, where an worker is owed £2,000 for a month’s salary but only paid £1,500 – this is still covered by the Delaney v Staples case; because as the court said, and employment tribunal “can entertain any claim by an employee that, in contravention of the Act, his employer failed to pay him at the appropriate time the full amount of the wages” owed at that time.

But what about where there has been a change of hours worked so the employer only pays for those hours worked. For example, suppose a worker has a contract for forty hours a week pay at £15 per hour; that would equal a weekly wage of £600. Now the employer only offers the worker twenty hours of work, so the worker is paid only £300, which is £3,000 less than the worker thinks should be paid. Can she make an unauthorised deduction of wages claim then?

For a while that was hotly debated because to determine the case an ET would need to interpret contract of employment which some felt the ET did not have jurisdiction to do. This was necessary because if our worker’s contract allowed an employer to unilaterally reduce hours of work then any claim would be defeated but if not then this would suggest the employer was required to pay the worker £600 per week for 40 hours work, even if the number of hours worked was less than this. This concern was settled by the Court of Appeal in Agarwal v Cardiff University [2019] IRLR 657. If interpretation of a contract was required to resolve a unauthorised deduction of wages case then the ET could do this.

An example of how this can be applied can be seen in International Packaging Corporation (UK) Ltd v Balfour [2003] IRLR 11. In that case the employer unilaterally reduced worker pay when it did not have a contractual right to do so. The amount of the unilateral reduction of pay was found to be an unauthorised deduction of wages.

The Agarwal decision is an especially important case for trade union representatives as it provides opportunity to raise collective issues on a collective basis where, for example, a unilateral change of contract is imposed by employers (something that may become more common after reforms to fire and re-hire in the Employment Rights Bill). While workers remain employed, they have no right to bring breach of contract claims in the ET (they can in the civil court but that is expensive). Where a failure to adhere to an employment contract results in a loss of wages then, post Agarwal, an unauthorised deduction of wages claim offers an opportunity for a collective claim on behalf of members.   

Lately Paid? 

Nearly all unauthorised deduction of wages concern an amount of money that remains unpaid. The claimant wants an order to require the employer to pay money owed to the worker – but is this an absolute requirement?

This question was considered in the context of an automatic unfair dismissal case in Francis v Elizabeth Claire Case Management Ltd [2005] IRLR 858. The claimant complained to her employer that it was often paying her late. There was no dispute all money owed had been paid, but simply the payments were later than they should be. She alleged that because of those complaints she was dismissed and that this was because of her asserting a statutory right (the right not to suffer unauthorised deductions of wages). The EAT therefore had to decide whether a failure to pay on time was itself capable of being an unauthorised deduction of wages? The EAT found that it was, stating [at paragraph 30] that the:  

“true position is that where an employee is not paid any of his or her salary on time, this failing by the employer constitutes a breach of ‘a relevant statutory right’ of that employee.

Of course, it is unlikely to be reasonable to complaint to an ET on the basis that an employer made a payroll a day late and there is no financial impact upon a claimant unless part of a broader case. However, it is not hard to see that a failure to pay on time might cause a worker financial loss.

For example, suppose a worker is due to be paid on the first day of every month but an employer does not in fact pay the worker until a week later. For that first week, the worker has insufficient money to pay their credit card, loan payments, mortgage etc (maybe all three!) and, as a result they are charged additional fees for their late payments. Because, in addition to ordering unpaid wages be paid, the ET can award additional sums for financial losses caused by the deduction (section 24(2) Employment Rights Act 1996) making a claim that an employer made deductions of wages simply by paying them late is an option reasonably open to a worker to recover that additional outlay caused by the employer’s breach.  

___

Want to stay updated? 

This blog is specifically for the benefit of trade union reps and members but I hope will be of interest more widely. . If you are not a union member then now is a good time to put that right, the TUC offers help selecting the right union to join (although feel free to message me if you’re unsure about what’s best and I am happy to make a suggestion depending on your circumstances).

If you are among the number of employment lawyers and paralegals who
work in the legal sector following this blog why not join the Legal Sector Workers United (LSWU)?

If you have found  this post or site helpful please think about subscribing to the email list by entering your email address below or by liking the blog on Facebook.

A good example of this tendency can be seen in the ET case of Mohamed v Acis Group (2021). Mr Mohamed was dismissed and he believed that dismissal was discriminatory. In his ground of claim he explained “I also strongly believe that my race had something to do with it and if it was one of my white colleagues the outcome would have been different.” Because that was all the claimant could bring to support his claim it was struck out.

Mr Mohamed’s gut instinct upon which he based his claim is a common and understandable one. An employee is faced with a detriment ( a dismissal, a warning, a demotion etc) and they note that this has affected them only, and no-one who does not share the protected characteristic (whatever the PC may be) has been treated in the same way. That disparity in treatment is entirely reasonable grounds for a concern of direct discrimination. But is is enough to justify starting a claim?

I have never tabulated the data on this but my guesstimate is that for maybe 60-70% people of people who are considering making an employment tribunal claim and who have not had any previous advice put forward as their main basis for why they have been discriminated against the fact of different treatment in the same way that the claimant in Mohamed v Acis Group did.

It is a surprise to them that if that is the argument then their legal complaint is on shaky ground (subject to new evidence that may come out in disclosure). I have set the burden of proof on this website before (the Efobi decision was indeed appealed to the Supreme Court and dismissed) but it is worth repeating the salient issue.

In its decision in Madarassy v Nomura International Plc [2007] EWCA Civ 33 [at 56] the Court of Appeal made clear that, contrary to the prime arguments of that 60-70%, that (emphasis added) the “bare facts of a difference in status and a difference in treatment only indicate a possibility for discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the Respondent had committed an unlawful act of discrimination.“

What this means is that unless that 60-70% can show that in addition to the different treatment there is something more to show that the reason for the treatment is the protected characteristic is then they will lose the case, if they can show this then they are still in the fight and may succeed at the tribunal.

The category of what is “something more” is wide and varied. Sometimes this may be obvious such as a manager who dismissed an employee having previously made racist remarks about the claimant. Sometimes it may be an evasive answer to allegations of discrimination (as in Virdee v EEC Quarries Ltd [1978] IRLR 295) or a senior official emailing staff to acknowledge there was disparity in the treatment of certain particular characteristics (as in Home Office v Kuranchie [2017] UKEAT 0202_16_1901).

As it happens, although maybe 60-70% of unrepresented persons may be framing their case in a way that is not positive it does not mean that they do not have a good claim. As Madarassy recognised a difference in treatment does “indicate a possibility for discrimination.”

Claimants advancing a case relying on just a difference in treatment will often come unstuck at Preliminary Hearing as the lack of a ‘something more’ becomes apparent.

So, if you are contemplating or advising on a discrimination claim then care to consider whether there is a ‘something more’ that can be relied upon will be valuable time spent. It may be that a case of discrimination is not proceeded with as, like the claimant in Mohamed v Aris Group there was nothing to say to prove discrimination beyond a gut instinct; or it may be that by identifying the evidence from the outset litigation is commenced on the front foot.