United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0099/16/RN

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

                                                                                                             At the Tribunal

                                                                                                             On 22 April 2016

Before

THE HONOURABLE MRS JUSTICE ELISABETH LAING DBE

(SITTING ALONE)

MR M M KEDZIORA                                                                                             APPELLANT

SERVEST GROUP LTD                                                                                      RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

SUMMARY

PRACTICE AND PROCEDURE - Striking-out/dismissal

The Employment Appeal Tribunal allowed the Claimant’s appeal against the decision of the Employment Tribunal to strike out his claim for discrimination on the grounds of his sexual orientation.

THE HONOURABLE MRS JUSTICE ELISABETH LAING DBE

1.                  This is an appeal from a decision of the Employment Tribunal (“the ET”) which was sent to the Claimant on 29 February 2016.  That letter was headed: “Part rejection of claim, Employment Tribunals Rules of Procedure 2013”.  It said this:

“Your claim form has been referred to Employment Judge Baron, who has decided to reject it because it is in a form which cannot sensibly be responded to.

The Judge’s reasons for this decision are as follows:

No details for your claim of sexual orientation therefore, it cannot sensibly be responded to.

The Judge has accept [sic] your remaining claims of; Sex Discrimination, Race Discrimination and Equal Pay.

Please respond within 7 days of this letter (07 March 2016).”

2.                  A Preliminary Hearing has been listed in the Claimant’s case for next week.  This appeal has been listed urgently in order that it could be heard before that Preliminary Hearing, as this appeal against the ET’s decision dated 29 February 2016 is capable of affecting the scope of that Preliminary Hearing.

3.                  The ET1 which the Claimant submitted (date stamped 25 February 2016), at box 8, which is headed “Type and details of claim”, ticked the box “I was discriminated against on the grounds of”.  The boxes “sexual orientation”, “race” and “sex (including equal pay)” have also been ticked.

4.                  I do not need to read all the details of the claim which are on the claim form, but it is clear from the claim form that the Claimant says he is gay - that is towards the end of the second paragraph of the claim form where he says in brackets, “I don’t wanna to tell [sic] anybody that I am gay”.  That is a clear statement that the Claimant is gay.

5.                  The claim form also refers to an incident on 25 June 2015 when the Claimant’s supervisor Ashley Vincent told him that “I should polish mirrors like I polish [men’s] genitalia”.  The claim form then says that the Claimant made a complaint about the conduct of Mr Vincent, and that the Claimant sent a text to his manager at that time, Robert Thomas, and that his manager ignored the text.  The claim form then says:

“… I think that it is a racial and sexual orientation discrimination.  After that I heard from the staff of H&M that I am fagg (this heard a manager from H&M Jack - he told James that he can’t call me like this) and queen. …”

6.                  What the claim form is saying is that the Claimant is gay; his then supervisor in June 2015 made a derogatory comment to him, which is capable of being understood as being a derogatory comment based on the Claimant’s sexual orientation; and then that his manager to whom he complained did not investigate that properly; and that the manager ignoring his text, the Claimant considers, is sexual orientation discrimination.

7.                  The claim form makes the further point that the staff in the shop in which his employer employed him to clean - that is H&M - after that were overheard using derogatory comments about him based on his sexual orientation, and as he told me during the hearing, he infers that information leaked from his employer to the staff at H&M that he was gay, which is clearly private information which it is up to the Claimant to disclose to others, but which his employer certainly should not be disclosing to others.

8.                  Towards the end of the claim form the Claimant refers to a complaint that was made about him, which led to his suspension on 27 November 2015.  He tells me that he did not discover the precise nature of the complaint until January when a version of it was disclosed to him at his investigation meeting.  Full details were disclosed in February of this year.  Essentially the complaint was that he was alleged by somebody to have said to a lady “you are beach [this was the version in January, or “butch” in the version in February], so you must be a lesbian”.  The Claimant on the claim form says that this allegation is not true, and as he explained to me, it was a particularly upsetting allegation for somebody to make against him because it suggests that he is homophobic in circumstances where he protests very strongly - and I accept that - that of course he is not homophobic because he is himself gay.

9.                  In those circumstances, it seems to me, that sufficient details of a potential claim of discrimination on grounds of sexual orientation are disclosed by the claim form and any defect in detail can be remedied, if the Respondent is embarrassed in dealing with the allegations, by a request for further information.  But it does seem to me that sufficient details of such a claim are disclosed and it follows, in my judgment, that the ET erred in law in excluding the sexual orientation claim from the allegations which it held it was open to the Claimant to pursue based on his claim form.  This appeal therefore succeeds.