Background
Mr. Ray Joseph, a tennis coach, applied for a position as a tennis coordinator with The University of Aberdeen. The university contended that it offered him the job via phone and email, but after receiving no response, it assumed he was not interested and decided to re-advertise the post. Mr. Joseph disputed this, stating he never received any offer communication.
Mr. Joseph filed a claim with the Employment Tribunal (ET) alleging direct and indirect discrimination based on race, sex, and/or sexual orientation, as well as harassment and victimisation. During the proceedings, it came to light that a university employee had deliberately altered an email in the correspondence chain to add a fake deadline for acceptance of the job offer. The university admitted to this fabrication.
Despite the university’s admission, the ET struck out Mr. Joseph’s entire claim, reasoning that it had no real prospect of success. Mr. Joseph appealed this decision to the Employment Appeal Tribunal (EAT) and also sought to join the Lawn Tennis Association (LTA), which provided partial funding for the position, as a respondent to the case.
The Court’s Holding
The Employment Appeal Tribunal (EAT) upheld the appeal in part. The university conceded that the ET had erred in law by striking out the entire claim in light of the admitted email fabrication. The EAT agreed, finding that the ET had failed to properly consider whether the circumstances surrounding the altered email and the subsequent retraction of the job offer could form the basis of a direct discrimination claim. The EAT directed that this part of the claim be remitted to the same ET for consideration.
However, the EAT refused the second part of the appeal, which concerned joining the LTA as a party. The court noted that the argument for the LTA’s liability as a “principal” under section 109 of the Equality Act 2010 had not been made before the lower tribunal. The EAT found no exceptional circumstances to warrant allowing this new point on appeal. It further observed that, in any event, the evidence presented—such as the LTA providing 50% of the funding—was insufficient to establish the necessary principal-agent relationship required to confer liability on the LTA for the university’s actions.
Key Takeaways
- An admission by an employer that it fabricated key evidence can be sufficient to prevent a discrimination claim from being struck out at a preliminary stage.
- The act of altering evidence and the circumstances surrounding the withdrawal of a job offer may, in themselves, give rise to a claim of direct discrimination.
- Appellate courts will generally not permit new legal arguments, such as claims of principal-agent liability, that were not raised before the lower tribunal.
- Merely providing funding for a position does not, without more, make the funding body a principal liable for the employment-related actions of the entity it funds.
Why It Matters
This decision underscores the high threshold for striking out discrimination claims before a full hearing on the merits, particularly when there is evidence of employer misconduct like falsifying documents. It affirms that such actions can be central to a finding of discrimination and must be properly examined. The ruling also serves as a critical procedural reminder for litigants: all relevant legal arguments and potentially liable parties must be identified and included at the initial tribunal stage, as opportunities to correct such omissions on appeal are exceptionally limited.