Should Employment Tribunals Look Beyond the Agreed List of Issues?

The 'List of Issues' is an essential document in Employment Tribunal proceedings. It outlines the key questions the Judge and panel will address during the hearing, ensuring the trial remains focused on the claimant's claims. The Tribunal's final decision will hinge on the answers and evidence in response to these questions.

Although often beneficial, the List of Issues may have some limitations, especially regarding how it may restrict the scope of discussion during a hearing.

In the case of Z v Y (2024), this proved to be the case, as the Employment Appeal Tribunal (EAT) was called upon to consider whether the Employment Tribunal should have considered issues beyond those on the agreed list when reaching their final judgement.

Case Overview and Initial Judgement

The claimant had previously worked for the Respondent, a county council, in the fire and rescue service. After a long-term sickness absence, the claimant resigned and brought forward various discrimination claims against their former employer, including a constructive dismissal claim.

During the proceedings, both parties agreed to a set List of Issues for the Tribunal hearing. This list made reference to the claimant's constructive dismissal claims but did not include any mention or reference to discriminatory unfair dismissal.

The Tribunal determined that the claimant had been constructively dismissed because they had resigned due to the Respondent's discriminatory conduct, which breached the implied terms of mutual trust and confidence. However, the Tribunal did not attempt to consider or clarify whether the dismissal itself was discriminatory, as this was not listed in the agreed List of Issues.

While many of the claimant's discrimination claims were upheld, the Tribunal did not consider the dismissal to be discriminatory. This omission led to the conclusion that the allegations of discrimination did not constitute a 'continuing act' ending in dismissal. This judgement meant the claims were out of time, and the claimant requested to appeal the decision with the EAT.

The Employment Appeal Tribunal Decision (EAT) found that the Tribunal had made an error by limiting itself to the agreed List of Issues. The Tribunal failed to consider or review the claim of discriminatory constructive dismissal, even though this was in the original claim form provided by the claimant.

The EAT ruled that the claim of discriminatory constructive dismissal was brought in time and should be upheld. Consequently, the question of whether the earlier acts of discrimination constituted a 'continuing act' ending with the constructive dismissal was remitted to the initial Tribunal for reconsideration and to determine a suitable remedy.

Learning Points

This case highlights that even with an agreed List of Issues, a Tribunal may need to address other appropriate issues during the trial. This flexibility is particularly crucial when one party (typically the claimant) represents themselves.

Following the Court of Appeal's decision in Parekh v London Borough of Brent (2012), the EAT clarified that Tribunals should not rigidly adhere to a list of issues if doing so impedes their primary duty to hear and judge the case comprehensively.

It is important to note that issues like those in this case are uncommon, as claims are usually clarified during the case management stage. In tribunal cases involving discrimination and unfair or wrongful dismissal, a preliminary hearing typically identifies the issues to be decided by the Tribunal. This process benefits both claimants and respondents by providing a clear understanding of the case issues, which helps with evidence and witness statement preparation.

Get in Touch

For more information or assistance with an Employment Tribunal case, please reach out to our Employment Litigation team. Our experienced solicitors can provide tailored advice to ensure you achieve the best possible outcome in your matter. Contact us on 023 8063 9311 or email enquiries@warnergoodman.co.uk.