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Claim missed off list of issues should have been considered by Tribunal

on Thursday, 09 May 2024.

The Employment Appeal Tribunal (EAT) has ruled that Tribunals must consider all claims raised by a claimant and should not rely solely on an agreed list of issues.

What were the facts of this case?

In Z v Y [2024], the claimant worked for a fire and rescue service as a risk and statistical data advisor. The claimant was being bullied at work which took a toll on her health and resulted in a prolonged period of sick leave. Whilst the claimant was on sick leave, no reasonable adjustments were made and the claimant was not allowed to return to her role. She was instead offered alternative employment with the respondent as an IT service worker on a fixed term contract. The claimant commenced this employment and resigned from her original permanent contract of employment.

The claimant brought a claim for constructive dismissal and discrimination. On her claim form (ET1) she stated that she was constructively dismissed and she referenced "the final act of discrimination…due to my mental health disability". The claimant did not have legal representation.

The parties were asked to agree a list of issues to help the Tribunal determine the case. A list of issues is a document that sets out the issues the parties agree the Tribunal needs to determine. A list of issues can be particularly helpful where issues or claims are not clearly set out in the pleadings.

As is usual practice with unrepresented claimants, the respondent drafted the list of issues on behalf of both parties. The parties agreed the list between them. However, the list did not refer to discriminatory constructive dismissal.

Tribunal refused to consider question of discriminatory constructive dismissal

The claim has had a complicated route through the Tribunals, having now been heard for its second appeal. The focus of this article is the question of whether the Tribunal should have considered whether there had been a constructive discriminatory dismissal, given that this was not included in the list of issues. At first instance, the Tribunal had declined to do so on the basis that the question of whether there had been a constructive discriminatory dismissal was not one of the issues before it. The claimant appealed against this finding.

EAT outcome

The EAT allowed the claimant's appeal in respect of the discriminatory constructive dismissal. The Tribunal should have considered the claim of discriminatory constructive dismissal. This was clearly an element of the claimant's claim as set out in her ET1 claim form. She had not been asked if she had withdrawn her discriminatory constructive dismissal claim and neither had she been asked to clarify this claim.

The EAT confirmed that a Tribunal should not stick rigidly to an agreed list of issues, where to do so would impair its duty to hear and determine the case before it. The agreed list of issues should be used as a useful tool of case management but should not replace the pleaded claim.

Learning points

Whilst the list of issues will usually set out all the issues to be determined in a case, particularly where it has been agreed between the parties or at a preliminary hearing, it should not be used to exclude claims clearly referenced in the claimant's claim form.  A Tribunal may look behind the agreed list of issues to ensure that all claims set out in a claimant's claim form are fully considered.

This is of particular importance where the claimant is unrepresented.  It is important for the respondent to carefully consider the full extent of the claimant's claims in order to achieve as much certainty as possible in the list of issues. 

For more information or advice, please contact Alastair Fatemi in our Employment team on 0117 314 5236, or complete the form below.

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