Tucker v Partnership in Care Ltd

An Employment Tribunal must determine the issues presented by the parties. Where a pre-hearing review identifies the issues, the Tribunal may ordinarily confine its decision to those issues, particularly where the parties do not object to their formulation. Failure to determine a separate claim is not an error of law when that claim was not clearly identified or pursued at the hearing.

A Tribunal may assist a litigant in person or a party represented by a non-lawyer by identifying a possible additional claim, provided that it acts within the bounds of reason and justice and gives the respondent a fair opportunity to answer it. It is not legally required to investigate evidence for an unadvanced claim.

The Claimant brought proceedings alleging unfair dismissal, disability discrimination, victimisation, breach of contract and breaches of the Working Time Regulations 1998. Her disability discrimination allegations included failure to make reasonable adjustments.

At a pre-hearing review, the Employment Tribunal identified the disability discrimination issue as whether she had been dismissed in consequence of her disability or her request for reasonable adjustments. It did not identify a separate detriment arising from failure to make adjustments.

The Tribunal rejected the disability discrimination claim but found that the employer had failed to make reasonable adjustments. On review, it maintained its decision because the case had been pursued by reference to dismissal alone. The central issue on appeal was whether the Tribunal had failed to determine a free-standing reasonable-adjustments claim.

1. Appeal dismissed. The Employment Tribunal had no error of law in deciding the disability discrimination issue that had been identified and pursued before it.

2. The proceedings were adversarial. The Tribunal’s task was to determine the disputes presented by the parties. Although the originating application and response referred to reasonable adjustments, the pre-hearing review focused the disability claim on dismissal as the alleged detriment. No separate detriment was identified in the pre-hearing order, raised before the hearing, or clearly pursued at the hearing.

3. The Tribunal was entitled to rely on the issues as formulated at the pre-hearing review. The Claimant had opportunities to challenge or amend that formulation, but there was no evidence that she did so. Evidence about the effects of the working arrangements did not itself require the Tribunal to determine an unadvanced claim.

4. The statutory scheme required a detriment to be identified. Under section 4(2)(d) of the Disability Discrimination Act 1995, dismissal or another detriment could constitute discrimination. The duty to make reasonable adjustments under section 4A was relevant to determining whether discrimination occurred, but section 18B(6) provided that the duty was not actionable as such. The detriment identified before the Tribunal was dismissal, and the Tribunal found that dismissal was unrelated to disability or the request for adjustments.

5. A Tribunal may take steps to identify a possible additional claim where fairness permits, including for a litigant in person or a party represented by a non-lawyer. That is a permissible case-management function, not a legal obligation. The appeal was therefore rejected.

• Employment Appeal Tribunal: appeal from the Employment Tribunal’s decision of 29 May 2008 and its review decision, with reasons given on 30 April 2009. Appeal dismissed.