The Perils of Lists of Issues in the Employment Tribunal

The EAT handed down its latest judgment in the case of Z v Y [2024] EAT 63 on 26 April 2024.

ET Decision:

Z (“the claimant”) brought claims of unfair dismissal and disability discrimination against Y (“the respondent”).

In her particulars of claim the claimant materially stated:

The failure ... to make reasonable adjustments ... is a breach of the Equality Act 2010.  The continuing state of affairs, refusing to allow me to return to work and to seek alternative employment, led to me ... resigning my post... I was Constructively Dismissed ... on 1^st June 2018 – the last act of discrimination.

The ET directed the respondent to prepare a draft list of issues ahead of a preliminary hearing on case management.  The respondent produced a generic list, leaving it to the claimant to identify which allegations were said to amount to each species of claim.

At the preliminary hearing, the claimant was directed to complete ‘all of the detail required in relation to each head of claim in the respondent’s draft list of issues’.

The claimant went on to provide further information and the respondent thereafter redrafted the list of issues.

The redrafted list of issues was discussed at the start of the final hearing and, ostensibly, agreed.

After the hearing, the ET gave its judgment in the following terms:

1. The claimant was not dismissed contrary to section 95(1)(c) Employment Rights Act 1996 ('ERA') and her claim of constructive dismissal must fail and is dismissed.
   
   
2. The tribunal does not have jurisdiction to determine the complaints of disability discrimination as they were submitted outside the statutory time period laid down in section 123 Equality Act 2010 ('EA') and it is not just and equitable to extend time.
   
   
3. If the tribunal had found the claims in time all disability discrimination claims would have been dismissed as not well founded save for the following:
   
   
   1. That the claimant was treated unfavourably because of something arising in consequence of her disability contrary to section 15 EA and the respondent has not shown the treatment to be a proportionate means of achieving a legitimate aim when W on 31 January 2018 informed the claimant that he would no longer allow the possibility of her returning to her role under any circumstances.
      
      
   2. That the respondent failed to make reasonable adjustments contrary to section 20 EA when W enforced a practice that all members of the team need to be co-located at a specific desk location in E H for operational reasons.

In its written reasons, the ET materially stated:

128. … that it was discrimination arising from disability to advise the claimant on 31 January that she could not return to her role. That and the failure to make reasonable adjustments … [ by W failing to allow a period of time within the phased return to work of the claimant sitting elsewhere] must therefore amount to a breach of the implied term of trust and confidence.

The First EAT Appeal and Remission:

At the first appeal against the reject of her claim, the claimant was successful.  The EAT (John Bowers KC) directed that the matter be remitted to the ET to determine the following questions:

1. Accepting that, at least in part, the claimant had resigned in response to the respondent's fundamental breach of contract (as found by the ET at paragraph 128), did she waive the breach of the contract or affirm the contract notwithstanding the breach?
   
   
2. Having failed to address the question whether any of the claimant's allegations amounted to a continuing act (a matter that had been expressly identified in the list of issues): whether or not there were continuing acts in respect of the breaches identified at paragraphs 3.1 and 3.2 of the ET's decision?

Having thereafter heard further evidence and submissions on these points, on remission the ET held that:

1. The claimant was constructively unfairly dismissed by the respondent.
   
   
2. There was no continuing act in relation to the Equality Act claims which were submitted out of time. The tribunal having no jurisdiction to determine them they are dismissed.

Whereas it had been argued that the ET should consider whether the constructive dismissal was itself discriminatory, the ET stated:

22. … it was never one of the tribunal's issues that this was a discriminatory constructive dismissal.

The Second EAT Appeal:

One of the grounds in the second appeal was that it was perverse for the ET to find that the claim did not include a case of discriminatory dismissal, and thus to exclude that matter when considering the question of continuing act for the purpose of determining whether the Equality Act 2010 claims had been brought out of time.

As summarised by The Honourable Mrs Justice Eady DBE (P) in her judgment at paragraph 29:

...[T]he claimant says the conclusion that discriminatory constructive dismissal was not an issue before the ET was perverse given its earlier finding that acts of disability discrimination upheld by the ET "must therefore amount to a breach of the implied term of trust and confidence", and the finding, on remission, of constructive dismissal, in circumstances in which the claimant's resignation being a "final act of discrimination" was pleaded in the ET1 in two places. As for whether this was envisaged in the list of issues, the claimant observes that the respondent's draft list referred to sections 13, 15 and 20 EqA; there was no suggestion that it was necessary to expressly refer to section 39. In any event, the ET was not required to "stick slavishly to the list of issues agreed where to do so would impair the discharge of its core duty to hear and determine the case in accordance with the law and the evidence", Parekh v Brent LBC [2012], EWCA Civ 1630, as applied in Mervyn v BW Controls Ltd [2020] EWCA Civ 393.

As to this ground, the respondent contended that the ET:

"… gave the Claimant every opportunity to confirm that she was alleging a discriminatory dismissal. She did not do so."

And that the ET had followed the guidance of HHJ Auerbach in McLeary v One Housing Ltd UKEAT/0124/18 and had sought meticulous clarification of the claimant’s claims at the outset of the final hearing.

Giving her judgment on the above ground, Mrs Justice Eady stated:

54. ...First, as part of her pleaded case, the claimant had made clear that her claims of disability discrimination ...included a complaint of discriminatory constructive dismissal, relied on as "the last act of discrimination" and "the final act of discrimination … due to my mental health disability". Second, although the claimant was directed to provide further clarification of how her case was put, that was in relation to the various forms of prohibited conduct on which she relied; at no stage was she asked to clarify the particular cause of action engaged under section 39 EqA. Third, in responding to the respondent's draft list of issues, the claimant had included the various matters she relied on as giving rise to the constructive dismissal; thus, the particulars provided under the heading "Unfair Constructive Dismissal" had included allegations that were also relied on as acts of disability discrimination under the various headings for the different forms of prohibited conduct that were said to be in play. Fourth, although the claimant had not then repeated her complaint of constructive dismissal under each of the different prohibited conduct headings, at no stage was she asked whether she had withdrawn that claim, which had been made plain (one might say (per Mervyn and McLeary) "shouted out") from the case she had originally pleaded.

55. In his carefully balanced submissions for the respondent, Mr Hodge contended that, notwithstanding the apparent failure to clarify with the claimant whether she had in fact intended to withdraw her pleaded claim of discriminatory constructive dismissal, the ET was entitled to proceed on the basis that, had this remained a live cause of action, the claimant could reasonably have been expected to have identified the act of constructive dismissal under each relevant prohibited conduct heading. In my judgement, however, this would be to elevate the list of issues to the status of a pleading. Instead of being a useful tool of case management, it would become a formal replacement for the claim; that is neither its function nor its purpose. As the Court of Appeal made plain in Parekh, an ET 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. In the present proceedings, that case had included a claim of discriminatory constructive dismissal, which had never been withdrawn. Moreover, the fact that this claim had been missed from the list of issues was entirely explicable from the focus on the different forms of prohibited conduct and the apparent failure to also ask the claimant to clarify (to the extent that that would have been considered necessary) the specific way/s she was putting her case under section 39. Whether the ET's failure to recognise that this was an issue in the case is characterised as "perverse", or as a straightforward error of law in failing to address a claim that it was required to determine, I am satisfied that it was wrong in law for the ET to decline to determine the claim of constructive discriminatory dismissal that was before it...

Suggested Takeaways:

• If a claim is clearly pleaded but is not included in a list of issues, seek a dismissal upon withdrawal.

• If a pleading is ambiguous as to whether a matter is intended to amount to a claim, ventilate the issue at the earliest opportunity before the ET and seek confirmation either way (then ask the ET to record the answer).

• Invite the ET to direct the parties to notify them within a short period if there is any disagreement about the content of the list of issues agreed during the course of preliminary case management.