Should Employment Tribunals look beyond the agreed List of Issues? Z v Y [2024] EAT 63

Background

The Claimant worked at the Respondent, a county council, as a risk and statistical data advisor within the Respondent’s fire and rescue service. During her employment, the Claimant experienced bullying which resulted in a prolonged period of sickness absence.

When returning to work, the Claimant was told that she could not return to her existing position and was offered a position as an IT service worker on a fixed-term contract.

Decision of the Employment Tribunal (‘ET’)

The Claimant issued claims against the Respondent, ticking the boxes for unfair dismissal and disability discrimination on her ET1 form. In her particulars, she listed her claims as constructive unfair dismissal, failure to make reasonable adjustments, discrimination arising from disability, direct and indirect discrimination and victimisation.

Following service of the Respondent’s response, an Employment Judge directed that the Respondent should prepare a draft list of issues “assuming claims of constructive unfair dismissal, failure to make reasonable adjustments, disability related discrimination and direct disability discrimination.”

A list of issues is a useful tool in proceedings directing the Tribunal in what it needs to decide.

The final list of issues reflected the claims as initially directed by the Employment Judge but did not refer to the Claimant’s claim of discriminatory constructive dismissal.

The ET found that the Respondent had discriminated against the Claimant on the grounds of disability when one of its employees told her that she could not return to her role after sickness absence. They also found that by failing to allow a period of time for a phased return to work, the Respondent had failed to make reasonable adjustments. The ET stated that together, the discrimination and failure amounted to a breach of the implied term of trust and confidence entitling her to resign.

Whilst a breach of the implied term of trust and confidence would usually result in a successful claim for constructive dismissal, the ET dismissed all the Claimant’s claims, refusing to consider discriminatory constructive dismissal because it had not been included in the agreed list of issues.

The Claimant was a litigant in person, receiving support from her husband.

First Decision of the Employment Appeal Tribunal (‘EAT’)

The Claimant appealed against the ET’s dismissal of her claims, specifically regarding her claim for discriminatory constructive dismissal.

John Bowers KC allowed the Claimant’s appeal and remitted her matter to the ET.

Following the remitted hearing, the ET held that the Claimant was constructively unfairly dismissed by the Respondent but there was no continuing act in relation to Equality Act 2010 (‘EqA 2010’) claims meaning that the Tribunal didn’t have jurisdiction to hear her claims for disability discrimination. The ET stated, “it was never one of the Tribunal’s issues that this was a discriminatory constructive dismissal.”

Second Decision of the EAT

Following the remitted hearing, the Claimant appealed the ET’s ruling on the grounds that it was perverse for the ET to find that her claim did not include a case of discriminatory dismissal.

Allowing the Claimant’s appeal, Mrs Justice Eady stated that the ET had erred in its Judgment because “the list of issues had not replaced the pleaded claim, and the ET had been wrong to slavishly stick to that list.”

Mrs Justice Eady substituted the ET’s finding that the claim of discriminatory constructive dismissal, was brought in time and upheld it.

The problems that arose in this case highlighted the importance of flexibility in the ET when one party to proceedings is a litigant in person. In particular, an ET cannot determine that the list of issues supersedes the original pleadings.

For further information or to discuss a potential employment law or discrimination claim, please contact our specialist employment solicitors on 0207 3950 5234 or info@rllaw.co.uk. We are ranked as a ‘Leading Firm’ in the Legal 500 and Chambers and Partners independent guides to the UK Legal Profession.

30 September 2024