In the case of St Mungo’s Community Housing Association v Andrews the Employment Tribunal erred in upholding a victimisation claim, on the basis of a protected act that had never been pleaded.

Ms Leigh Andrews worked at Broadway Homeless and Support as a Welfare Rights Co-ordinator in London. It would later become St Mungo’s Community Housing Association following a merger.

Andrews subsequently found another job and resigned. Shortly after she gave her notice she was told that bullying allegations had been made against her by her line manager and that there had already been a preliminary investigation but the decision had been taken not to proceed. This came as a surprise and she denied the allegations. She asked that a disciplinary hearing be held to properly determine the matters and offered to return to London after her employment ended, in order to participate in that hearing but this offer was rejected.

Shortly after leaving Broadway, the Claimant discovered a male member of staff was being paid more for work she considered to be of equal value. She instructed solicitors to send an equal pay questionnaire to the Respondent and lodged a claim at the Employment Tribunal. The Respondent replied to the questionnaire but the Claimant decided not to pursue proceedings further due to the financial risk of pursuing proceedings.

She applied to join St Mungo’s bank of locum workers and was informed she had been successful but the offer was then withdrawn after a member of staff recalled her being involved in bullying allegations. The ET concluded that the questionnaire and the equal pay claim were material facts in their decision.