A tribunal need not revisit a potential claim it has already raised with an unrepresented claimant

Background

In Nagra v Unipart Group Ltd, the claimant worked for Unipart through a recruitment agency, RE People. He brought claims including unfair dismissal, sex discrimination, harassment and equal pay. He argued that a separate company, Supply Chain Coordination Ltd (SCCL), employed him and that Unipart was liable as SCCL’s agent. He denied having a contract with RE People.

At a case management hearing, the judge explained that a principal can be liable for discrimination against a contract worker supplied by another organisation. The claimant did not adopt that alternative route and continued to argue that SCCL employed him.

At a later preliminary hearing, the claimant chose not to give evidence. The tribunal found that the agency arrangement was genuine and reflected the parties’ relationship. It rejected his case against SCCL and Unipart, including his argument that the arrangement had materially changed when he moved into a different role. The claims were dismissed.

EAT decision

The EAT dismissed the appeal. It accepted that the possibility of a claim against Unipart as the hirer was apparent from the pleadings. However, the tribunal had addressed this at the earlier case management hearing by explaining the alternative route to the claimant.

Tribunals must assist litigants in person where fairness requires, which can include identifying an apparent issue and seeking clarification. But they have a wide margin of appreciation and must remain impartial. They cannot take responsibility for choosing or formulating a claim on a party’s behalf.

The tribunal had discharged its obligation by raising and explaining the alternative route earlier. It was entitled to proceed at the later hearing on the basis that the claimant had chosen to maintain a different case. Fairness did not require the tribunal to raise the point again or formulate the alternative claim for him. The EAT assessed the assistance provided across the proceedings as a whole.

The EAT said it is good practice for a tribunal at the start of a substantive hearing to confirm the issues and the parties’ positions. Failure to do so does not automatically amount to an error of law. The tribunal also did not have to decide a direct employment claim against Unipart that the claimant had not advanced.

Learning points for employers

Parties should ensure that the claims and issues are clearly recorded and confirmed at the start of a substantive hearing, particularly where someone is unrepresented.

Hirers should remember that discrimination law can make them liable for discrimination against agency workers in certain circumstances. Contracts and assignment documents should reflect the actual arrangements. A change in duties, job title or pay will not necessarily alter the underlying agency relationship.

For more information or advice, please get in touch with Philip Mahboobani in our Employment team.