An early and sometimes key battleground in an employment tribunal claim is in the preparation of a “List of Issues”. For those not familiar with the term, this is a list of all the issues in a claim which the tribunal is asked to decide. There are usually issues of fact (i.e. whether the situation did happen as alleged) as well as the issues of law to be decided.
These lists are important because the tribunals are guided by them in their consideration of a case. This importance is highlighted by the fact that parties often take disputes about decisions which turn on a list of issues to an appeal court.
The recent case of Z v Y is a reminder to the employment tribunals on the approach they should take in deciding matters to do with a list of issues on a case, particularly if one of the parties is not legally represented. Z v Y involved a claimant who was supported in the litigation by her husband, and complaints including one for discriminatory constructive dismissal (i.e. that she had resigned because of discriminatory conduct).
The argument before the Employment Appeal Tribunal was whether the tribunal should have decided the complaint for discriminatory constructive dismissal even though this complaint was not included in the list of issues. It is worth noting that the parties agreed the claimant’s pleaded claim, as set out in her ET1 and did include the argument that her resignation was a final act of discrimination.
At paragraph 55 of the Judgment, Mrs Justice Eady refers to lists of issues as “a useful tool of case management” and states that, in line with the Court of Appeal’s decision in Parekh v London Borough of Brent, “employment tribunals should not stick slavishly to the agreed list of issues where to do so would impair its core duty to hear and determine the case before it”.
Z v Y has, following success of the appeal, been returned to the employment tribunal for that matter to be decided and the claim for constructive dismissal will be considered.
Unrepresented litigants in particular should take from this case that, provided they are clear about the concerns they wish the employment tribunals to consider, judges ought pro-actively to make sure that all of the relevant legal issues in the case are identified and decided on.
This blog was written by Ben Lindsay, Solicitor at didlaw.
