Mensah v East Hertfordshire NHS Trust

An employment tribunal is not under a general legal duty to identify and determine every allegation contained in an originating application where the party has not pursued it by evidence or argument. The parties retain responsibility for presenting their cases.

Tribunals should assist unrepresented litigants and should ordinarily clarify the issues to be pursued. However, the nature and extent of that assistance are matters for the tribunal's judgment in the circumstances. They must not be converted into rigid rules of law.

On a second-tier appeal, the question is whether the industrial tribunal made an error of law which gave the Employment Appeal Tribunal jurisdiction to interfere.

The appellant, an experienced nurse of Ghanaian racial origin, alleged race discrimination by the respondent NHS Trust in the arrangements for filling maternity and neonatal-unit vacancies. Her originating application referred to both units.

Following a directions hearing, the disclosure and witnesses concerned maternity-unit vacancies. At the full hearing the appellant gave no evidence or argument about the neonatal unit. The Industrial Tribunal dismissed the discrimination complaint.

The Employment Appeal Tribunal held that the Industrial Tribunal had failed to address the neonatal allegation and remitted the whole claim for rehearing. The Trust appealed. The central issue was whether an industrial tribunal must of its own motion ensure that every allegation in an originating application is determined or expressly abandoned.

Appeal allowed unanimously. Peter Gibson LJ gave the leading judgment, with Henry LJ agreeing and Sir Christopher Slade agreeing and adding observations. The order of the Employment Appeal Tribunal was discharged and the Industrial Tribunal's dismissal of the complaint was restored.

1. As a second-tier appellate court, the Court's task was to determine whether the Industrial Tribunal had made an error of law. The Employment Appeal Tribunal had no jurisdiction to interfere unless such an error existed. The Court applied the approach stated in Campion v Hamworthy Engineering Ltd [1987] I.C.R. 966.

2. The Employment Appeal Tribunal had wrongly derived a duty from rule 9(3) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993. That rule concerns a party's non-attendance and did not apply to a hearing attended by the appellant. Its application would not have assisted her: without evidence on the neonatal allegation, the complaint would have had to be dismissed.

3. Although rule 9(1) gives tribunals wide powers to conduct proceedings informally, make appropriate enquiries and achieve a just hearing, it does not impose a legal duty to raise and investigate a pleaded allegation which the claimant does not seek to prove. The established authorities, including Kumchyk v Derby City Council [1978] ICR 1116, place responsibility for presenting evidence and issues on the parties. Assistance to an unrepresented party remains a matter for the tribunal's case-specific judgment.

4. The directions following the pre-hearing review concerned only maternity-unit vacancies. The appellant neither challenged them nor sought directions concerning the neonatal unit, and later gave no evidence or submissions on that issue. The Tribunal could therefore not be said to have failed to hear the originating application.

5. The Court encouraged tribunals to clarify with unrepresented applicants which matters in an IT1 are pursued. That was good practice, but it did not create the duty asserted by the Employment Appeal Tribunal. Sir Christopher Slade added that appropriate assistance must be balanced against potential injustice or hardship to the other party.

• Court of Appeal (Civil Division): Allowed the Trust's appeal in Mensah v East Hertfordshire NHS Trust [1998] EWCA Civ 954, discharged the Employment Appeal Tribunal's order, and restored the Industrial Tribunal's dismissal.
• Employment Appeal Tribunal: Allowed the appellant's appeal on the ground that the Industrial Tribunal had not dealt with the neonatal-unit allegation, and remitted the matters raised in the IT1 to a different Industrial Tribunal for a full rehearing.
• Industrial Tribunal: On 2 October 1995, unanimously dismissed the complaint of racial discrimination concerning the advertised midwife vacancy.