Christopher Rodger v Forestry and Land Scotland
[2024] EAT 172
N Moustache v Chelsea and Westminster NHS Foundation Trust
15 June 2023
[2022] EAT 204
Employment Appeal Tribunal
A woman claimed unfair dismissal and discrimination. The first judge missed her discrimination claim because it wasn't clearly stated in her paperwork. A higher court said the first judge made a mistake and should have looked at the whole picture, not just the formal paperwork. The case will be heard again by a different judge.
Key Facts
- •Claimant worked for Respondent for 28 years, dismissed in September 2019.
- •Claimant brought initial claims for age and disability discrimination and later added unfair dismissal claim.
- •Tribunal hearing was conducted remotely over four days.
- •Claimant represented herself, Respondent had legal representation.
- •List of Issues, agreed shortly before the hearing, omitted a claim of disability discrimination arising from dismissal.
- •Claimant's ET1 and witness statement contained information suggesting a claim under s.15 Equality Act 2010.
- •Tribunal dismissed all claims without addressing the potential s.15 claim.
Legal Principles
Overriding objective of Employment Tribunal rules is to deal with cases fairly and justly.
Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013, rule 2
Section 15 Equality Act 2010: Discrimination against a disabled person if treated unfavourably due to something arising from their disability, unless proportionate means of achieving a legitimate aim.
Equality Act 2010, s.15
Employment Tribunals should not slavishly adhere to Lists of Issues if doing so would impair their duty to hear and determine the case fairly.
Parekh v Brent London Borough Council [2012] EWCA Civ 1630
Employment Tribunals, especially when dealing with unrepresented parties, must ensure the list of issues reflects the significant issues in dispute and clarify any ambiguities.
Mervyn v BW Controls Ltd [2020] ICR 1364
If it's obvious from the ET1 that a litigant in person relies on facts supporting a legal claim, the ET has a duty to ensure they understand the claim.
Mervyn v BW Controls Ltd [2020] ICR 1364 (Laing J at para 84)
Even without explicit articulation, if a claim 'shouts out' from the pleadings, the Tribunal should clarify whether it's being pursued, especially with unrepresented claimants.
Mervyn v BW Controls Ltd [2020] ICR 1364
Outcomes
Appeal allowed.
Tribunal erred in failing to identify and determine the Claimant's claim of disability discrimination arising out of her dismissal. The information provided by the Claimant should have alerted both the Tribunal and Respondent to this claim.
Claims of unfair dismissal and discrimination remitted to a new Tribunal.
The Tribunal's failure to address the potential s.15 claim was a procedural error, preventing a fair hearing.