The Claimant was an applicant for a job with the Respondent, a bus company. He was conditionally offered a role and attended induction, but the offer was in due course withdrawn. The Claimant claimed that was direct race discrimination and victimisation. The Claimant had told the Respondent about a tribunal claim against a previous employer, and during the course of his induction process he had emailed Respondent to raise a question as to whether there was a difference in treatment on grounds of race between himself and other candidates. The ET found that the Respondent did not withdraw the job offer because the Claimant had done a protected act: it found that the decision-makers did not know the earlier claim was a claim of discrimination, and that the later email did not amount to a protected act. However, the ET found that the fact of the earlier claim and the email led the Respondent to believe that the Claimant may do a protected act in future (s.27(1)(b)).The claim was initially upheld in part but the ET subsequently reconsidered its decision and dismissed the claim on the grounds that the successful part of the claim had not been pleaded. The Claimant appealed.

The EAT allowed the appeal. The ET erred in holding that the claim based on the Respondent’s belief that the Claimant may do a protected act was not within the claim pleaded in the Grounds of Complaint. The two variants on the claim were very closely related and arose from the same facts, the only difference being the exact reasoning of the Respondent. Also the ET erred in holding that the fact that the claim was not pleaded was determinative of whether the initial judgment should be reconsidered in the interests of justice. The ET should have carried out a broader assessment of the circumstances in determining the interests of justice. Had it done so, in the particular circumstances of this case, the only permissible decision within the ET’s discretion would have been to allow the initial decision to stand.