Tribunals are not to slavishly follow the ‘list of issues’ – pleadings remain king

In Z v Y [2024] EAT 63, Eady J reminded Tribunals that pleadings trump the list of issues.

Z’s claims were rejected at first instance but, following a successful appeal were remitted to the same ET. On remittal, the ET upheld her ‘ordinary’ constructive dismissal claim but refused to consider whether the dismissal was also discriminatory on the basis that that claim was never presented in the ‘list of issues’. Other discreet claims of disability discrimination were rejected as out of time. Z successfully appealed for a second time.

It was not in dispute that (1) the Claimant’s pleaded case, set out in her ET1, included a claim for discriminatory dismissal; (2) she was never asked whether she was withdrawing the discriminatory dismissal claim in her pleaded case; and (3) in responding to Y’s draft list of issues, Z added matters said to give rise to a constructive dismissal that included individual acts of disability discrimination.

Eady J said that it would be wrong to elevate the ‘list of issues’ to the status of a pleading, essentially replacing the claim form. Rather, the ‘list of issues’ is a useful tool of case management. In this case, the absence of the claim of discriminatory dismissal from the list of issues was clearly explicable.

Having substituted a finding that the claim of discriminatory dismissal was upheld and ‘in time’, the EAT remitted the claim to the same ET again to consider whether discreet acts of discrimination were now also rendered ‘in time’ by reason of the ‘continuing act’ provisions.

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Authors

Claire Palmer

Call 2003

Related areas

Employment

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