ET errs in making ‘wafer thin’ distinction between victimisation claims

In Jamshid Aslam v Transport UK London Bus Ltd [2025] EAT 113, the claimant alleged that the respondent withdrew a job offer after he told them about a tribunal claim against a previous employer. During the induction process, the claimant emailed the respondent to enquire whether he was treated differently from the other candidates for the job because of his race. The ET found that the job offer had been withdrawn as the respondent believed the claimant was likely to do a protected act under EqA 2010, s 27(1)(b) and upheld the claimant’s victimisation claim. The respondent applied for reconsideration on the basis that the claimant had only pleaded under EqA 2010, s 27(1)(a) (victimisation by A because B does a protected act) and not EqA 2010, s 27(1)(b) (victimisation by A because A believes B has done, or may do, a protected act). The ET agreed and reversed the victimisation decision. The claimant appealed to the EAT.

The EAT held:

• according to Chandhok v Tirkey [2015] ICR 527, the purpose of the ET1 is to set out the essence of the claim. The tribunal erred in finding that a EqA 2010, s 27(1)(b) claim was not pleaded because the distinction between the two claims was ‘wafer thin’. Therefore the precise reason for the respondent’s actions was a matter entirely within its own knowledge. The EAT held that both reasons were in the mind of the respondent when withdrawing the job offer

• the ET failed to properly consider whether the EqA 2010, s 27(1)(b) claim was so closely linked to the EqA 2010, s 27(1)(a) claim that it was necessary, in the interests of justice, to vary or dismiss the initial ET decision that the claimant had been victimised under EqA 2010, s 27(1)(a). In the EAT’s view, the only correct answer to that question is that it should stand because both claims were very closely linked.

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