Parekh v London Borough of Brent

A list of issues prepared at an employment tribunal pre-hearing review is ordinarily a case management tool, rather than an order or final adjudication. An agreed list will generally define the substantive hearing, but the tribunal need not follow it where that would impair its duty to determine the case according to law and the evidence.

In an unfair dismissal claim, the employer must establish a potentially fair reason for dismissal. The employee may challenge whether the stated reason was genuine, but must produce evidence capable of raising a real issue about it. A refusal to permit a positive protected-disclosure claim does not necessarily prevent evidence of complaints being used for that limited purpose.

The appellant was dismissed from his employment as a school bursar, purportedly for capability. He brought ordinary unfair dismissal proceedings. At a pre-hearing review, an employment judge refused a late amendment alleging automatic unfair dismissal for protected disclosure and recorded a list of issues concerning the reasonableness of the capability dismissal.

The Employment Appeal Tribunal, in [2012] UKEAT 0097_11_1603, held that the employment judge had exercised case management powers under rule 10 of the Employment Tribunals Rules of Procedure 2004 to exclude any dispute about the reason for dismissal. It dismissed the employee's appeal.

The issue before the Court of Appeal was whether the list amounted to an order or binding decision which prevented the employee from disputing capability as the true reason for his dismissal.

1. Appeal dismissed. The list of issues did not constitute an order, an adjudication or a final and binding decision. It appeared only in the employment judge's reasons and recorded the judge's understanding of the tripartite case management discussions. It did not exclude a challenge to capability as the true reason for dismissal: paras 26–30 and 36.

2. A list of issues is a case management tool intended to provide order, structure and clarity in employment proceedings, where formal pleading requirements are minimal. An agreed list will generally limit the substantive hearing. Nevertheless, the tribunal must not adhere to it slavishly where that would impair its core duty to decide the case according to law and the evidence. Case management decisions are not final and may be revisited, particularly following a material change of circumstances: para 31.

3. Where a party contends that a list inaccurately records the discussions, or that circumstances have materially changed, the appropriate course is ordinarily to ask the employment tribunal to reconsider it in the interests of justice. An agreed list will rarely present a question of law suitable for an appeal: para 32.

4. Under section 98(1) of the Employment Rights Act 1996, the employer remained required to establish that the reason for dismissal was potentially fair. If it did so, the evidential burden shifted to the employee to produce evidence casting doubt on whether that was the true reason. An assertion in argument was insufficient: para 36.

5. The refusal of permission to plead automatic unfair dismissal under section 103A prevented the employee from advancing a positive protected-disclosure case. It did not prevent him from adducing otherwise relevant evidence, including the nature and timing of complaints, to raise an issue about whether capability was the genuine reason. The trial tribunal was to rule on the relevance and admissibility of that evidence: paras 35–36.

6. The Employment Appeal Tribunal was wrong to treat the preparation of the list as an exercise of discretion under rule 10 of the Employment Tribunals Rules of Procedure 2004. Its dismissal of the appeal was nevertheless correct because the list raised no question of law capable of engaging the Employment Appeal Tribunal's jurisdiction under section 21 of the Employment Tribunals Act 1996: paras 28–29 and 37. Patten LJ and Foskett J agreed with Mummery LJ.

1. Court of Appeal (Civil Division): Dismissed the appeal in [2012] EWCA Civ 1630. The Employment Appeal Tribunal had incorrectly treated the list of issues as a rule 10 case management decision, but had correctly dismissed the appeal because no question of law arose.

2. Employment Appeal Tribunal: In [2012] UKEAT 0097_11_1603, dismissed the employee's appeal. It held that rule 10 of the Employment Tribunals Rules of Procedure 2004 empowered the tribunal to restrict the issues and that the discretion had been properly exercised.

3. Employment Tribunal: Refused permission to amend the claim to allege automatic unfair dismissal for protected disclosure. It also recorded a list of issues for the ordinary unfair dismissal claim following a pre-hearing review.