D Gibbons v K Chinambu & Anor
[2023] EAT 50
Colin Smith v Nottingham City Transport
21 May 2024
[2024] EAT 94
Employment Appeal Tribunal
A worker sued his employer for discrimination. The judge dismissed most claims but made a small award for one. The worker appealed, and a higher court agreed the judge wrongly dismissed one specific claim of harassment. The higher court sent the case back to be tried again on that point.
Key Facts
- •Colin Smith (Claimant/Appellant) brought multiple discrimination complaints against Nottingham City Transport (Respondent).
- •Complaints included direct discrimination, discrimination arising from disability, harassment, and victimisation under the Equality Act 2010.
- •Following deposit orders and withdrawals of some claims, only one complaint (section 15 discrimination) succeeded at the Employment Tribunal.
- •The Tribunal awarded £900 for injury to feelings but did not award interest.
- •The Claimant appealed to the EAT.
- •The Claimant was a litigant in person for much of the process, with periods of representation.
Legal Principles
Withdrawal of a claim must be clear and unambiguous.
Case law cited in the judgment (unspecified but referred to in section 37)
In harassment claims, the tribunal must consider the claimant's perception of the conduct (Equality Act 2010, section 26(4)(a)).
Equality Act 2010, section 26(4)(a)
The tribunal has discretion to award interest on compensation for injury to feelings (Employment Tribunal (Interest on Awards in Discrimination Cases) Regulations 1996).
Employment Tribunal (Interest on Awards in Discrimination Cases) Regulations 1996
Vento guidelines for injury to feelings awards. Awards below the lowest band should be avoided (Vento [2003] ICR 318)
Vento [2003] ICR 318
Outcomes
Appeal allowed in part.
The Employment Tribunal erred by dismissing a harassment claim (allegation 6) that was not covered by deposit orders and had not been unambiguously withdrawn. The case was remitted to the Tribunal to determine this claim.
Appeal dismissed in part regarding other claims (allegation 9).
The EAT found the Tribunal correctly applied the law regarding harassment and didn’t err in finding that Ms Swift’s conduct did not constitute harassment. The Tribunal considered claimant's perception and the reasonableness of the effect of the conduct.
Appeal dismissed regarding the section 15 claim.
The EAT found the Tribunal's reasoning, though not perfectly articulated, justifiable. The Tribunal's conclusion that only the conduct on 18 October 2018 constituted section 15 discrimination was deemed reasonable.
Appeal dismissed regarding the injury to feelings award.
The EAT found the Tribunal’s reasoning for the £900 award (though it mistakenly believed it was bound by the lower limit of the lowest Vento band) was not Meek-compliant but ultimately justified. The Tribunal's decision not to award interest was also upheld.