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Chambers & Partners
06/10/2002

Bradford Hospitals NHS Trust v. Al-Shabib

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Employment Appeal Tribunal

The Trust, B, appealed against a decision of an employment tribunal that A had been discriminated against on grounds of race and had also suffered victimisation. A's membership of B's staff gym had been revoked because he had, contrary to the gym's rules, allowed his wife and child to use the gym without their being members of the gym. A alleged that the revocation had been racially based and that B was also guilty of racism in the manner in which it conducted the grievance procedure which he had instigated. B contended that (1) the tribunal had no jurisdiction to make the finding of victimisation since such a claim had not been raised in A's complaint, and (2) the tribunal had erred in its finding that B had acted unreasonably which led directly to the conclusion that B had discriminated against A.

HELD: allowing the appeal, that (1) the tribunal did not have jurisdiction to make a finding of victimisation when such a complaint had not been put before it, Chapman v Simon [1994] I.R.L.R. 124 applied. Even if the tribunal had taken into account the fact that A had no legal representation, there was nothing in A's statement which was sufficient to put B on notice that such a complaint was being raised, nor had the chairman of the tribunal raised the issue or suggested an amendment to A's statement. Accordingly, the tribunal could not deal with a complaint of which the respondent had no knowledge, and (2) in the absence of any direct comparators, there was no evidence upon which the tribunal could have inferred that A had been treated differently from a hypothetical comparator. The tribunal had erred in making a direct connection between the fact that A had been treated unreasonably and a finding of discrimination and had therefore failed to distinguish between the issue of reasonableness and less favourable treatment.

[2003] IRLR 4

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