Lists of Issues

[Thanks to Laurie Anstis of Boyes Turner who is standing in for Daniel Barnett during holiday absence, and to Ed McFarlane of Deminos HR for preparing this case summary]

How should a list of issues for an employment tribunal hearing be drawn up?

Not in the way it was done in Price v (1) Surrey County Council (2) Governing Body of Wood Street School says the EAT (Carnwath LJ, sitting as Senior President of Tribunals).

The lay-represented Claimant was constructively dismissed but failed in her whistleblowing case. The EAT made observations about the list of issues drawn up for the employment tribunal hearing, appending that list to its Judgment to illustrate its concerns.

The EAT suggested that lists of issues should distinguish between the central issues "e.g. unfair dismissal and detriment due to a protected disclosure" and the key factual allegations. The EAT noted the failure in the instant case of the list of issues to discriminate between significant factual issues and those found by the employment tribunal to be 'utterly trivial'.

Giving guidance on drafting and using list of issues, the EAT observed "even where lists of issues have been agreed between the parties, they should not be accepted uncritically by employment judges at the case management stage. They have their own duty to ensure that the case is clearly and efficiently presented. Equally the tribunal which hears the case is not required slavishly to follow the list presented to it".

Noting that the case was extended by dealing with peripheral, exaggerated and unsustainable allegations, the EAT called for the provision of basic legal help to unrepresented litigants, in the interests of the efficiency and economy of the justice system, as well as accessibility.

Practitioners may also wish to note a different recent decision of the EAT (Langstaff J) in Land Rover v Short where the parties (both represented) had a legitimate disagreement as to whether 'bumping' was within the list of issues, and noted "the responsibility remains with the Tribunal to deal with the issues which the parties are putting before it, and to identify what they are".