List of Issues
Not a substitute
The list of issues is a useful case management tool but it does not act as a substitute for the actual claim, and the ET is not required to stick slavishly to it (even if previously agreed between the parties) where to do so would impair the discharge of its duty to hear and determine the case in accordance with the law and the evidence (per Mummery LJ, paragraph 31 Parekh).
What if it forms part of an earlier case management decision?
In Mervyn v BW Controls Ltd [2020] ICR 1363, the Court of Appeal allowed that, where a list of issues, drawn up as part of an earlier case management order, fails to properly encapsulate the claim, an ET may be required to revisit that earlier case management decision “where that is necessary in the interests of justice”:
“38. … what is ‘necessary in the interests of justice’ in the context of the tribunal’s powers under rule 29 [ET Rules] depends on a number of factors. One is the stage at which amending the list of issues falls to be considered. An amendment before any evidence is called is quite different from a decision on liability or remedy which departs from the list of issues agreed at the start of the hearing. Another factor is whether the list of issues was the product of agreement between legal representatives. A third is whether amending the list of issues would delay or disrupt the hearing because one of the parties is not in a position to deal immediately with a new issue, or the length of the hearing would be expanded beyond the time allotted to it.
…
- It is good practice for an employment tribunal, at the start of a substantive hearing, with either or both parties unrepresented, to consider whether any list of issues previously drawn up at a case management hearing properly reflects the significant issues in dispute between the parties. If it is clear that it does not, or that it may not do so, then the employment tribunal should consider whether an amendment to the list of issues is necessary in the interests of justice.”
What if the list of issues represents an earlier concession?
Where the list of issues properly represents a concession made at an earlier stage in the proceedings, the withdrawal of that concession would require a formal process of application:
Nowicka-Price v Chief Constable of Gwent Constabulary UKEAT/0268/09 and Centrica Storage Ltd v Tennison UKEAT/0336/08.
Issues not raised in statements of case
In general terms, having given a fair reading to the parties’ statements of case, must the tribunal consider something that has not been put in issue on liability or remedy?
Consider the observations of Rimer LJ at paragraph 31 Muschett v HM Prison Service [2010] IRLR 451:
“…Their function is to hear the case the parties choose to put before them, make findings as to the facts and to decide the case in accordance with the law. The suggestion that, in the present case, the employment judge committed some error of law in failing to engage in the sort of inquiry that [counsel for Mr Muschett] suggested is, in my judgment, inconsistent with the limits of the role of such judges …”
Failure to put a point at trial
As for a challenge made on the basis of a failure to put a point at trial which then informs the ET’s conclusions, the question is whether the irregularity complained of intrinsically taints the entirety of the trial or the decision reached; see the discussion at paragraphs 67-68, and 83-85 Stuart Harris
Associates v Goburdhun [2023] EAT 145.
