Parekh v Brent London Borough Council

The Court of Appeal dismissed the appellant's challenge to a Pre-Hearing Review (PHR) record of issues. The court held that the PHR document recording the tribunal's understanding of issues was not an order restricting the tribunal at the substantive hearing from requiring the respondent to prove the reason for dismissal. The judge emphasised the distinction between a case-management list of issues and a decisive adjudication; a list agreed or recorded at a PHR will usually guide the substantive hearing but does not preclude the tribunal hearing evidence and making findings of fact on the reason for dismissal.

The court applied statutory and procedural principles in the judgment: the burden under section 98(1) of the Employment Rights Act 1996 remains on the employer to show the reason for dismissal and that it is potentially fair; protection of protected-disclosure claims under section 103A was addressed in the context of an application to amend but refusal to allow an amendment does not, by itself, prevent a claimant from adducing evidence relevant to whether the employer's stated reason was the true reason; and case-management decisions are revisitable by the tribunal where appropriate (see authorities cited such as Hart v English Heritage and Kuzel v Roche Products).

Background and parties: The appellant, Mr Shailesh Parekh, was dismissed by the London Borough of Brent (the Council) on capability grounds. He brought claims to an employment tribunal including ordinary unfair dismissal and, later, sought to amend his ET1 to include an automatic unfair dismissal claim based on protected disclosure under section 103A of the Employment Rights Act 1996. At the PHR on 15 December 2010 the employment judge recorded a list of issues for determination and refused the late amendment to add a protected-disclosure claim. The appellant appealed that refusal to the Employment Appeal Tribunal (Recorder Luba QC), which dismissed his appeal. He then obtained permission to appeal to the Court of Appeal.

(i) Nature of the application: The principal contested application at the PHR was a late application by the claimant to amend his ET1 to plead an automatic unfair dismissal claim for protected disclosure (s.103A). The appellant also complained that the PHR list of issues effectively excluded the question whether the employer had proven that capability was the reason for dismissal.

(ii) Issues before the court: Whether the PHR list amounted to an order or final adjudication excluding the issue of the true reason for dismissal; whether the employment judge had power under the Employment Tribunals Rules of Procedure 2004 (Rule 10, Rule 18(7)) to draw up and record issues in that manner; and whether the claimant was thereby prevented from challenging the respondent's stated reason for dismissal.

(iii) Reasoning and outcome: The Court of Appeal held that the formal order made at the PHR related only to dismissal of withdrawn discrimination claims and refusal of the amendment to plead protected disclosure. The recorded list of issues formed part of the judge's reasons and was a case-management tool recording the tribunal's understanding following tripartite discussion; it was not a binding adjudication excluding the tribunal from hearing evidence about the reason for dismissal. The court explained that case-management lists commonly limit issues but the substantive tribunal retains its duty to hear and determine the case on law and evidence and may revisit case-management decisions where justice or changed circumstances require. The court reiterated that the burden under s.98(1) of the Employment Rights Act 1996 rests on the employer to show a potentially fair reason for dismissal, and that a claimant wishing to challenge that reason must adduce some evidence to raise a real issue (Kuzel v Roche Products). The appeal was dismissed.

Appeal dismissed. The Court of Appeal held that the PHR list of issues was not an order or final adjudication preventing the employment tribunal from requiring the employer to prove the reason for dismissal; the list was a case-management record and the substantive tribunal retains the duty and power to hear evidence and determine the true reason for dismissal. Refusal to allow the late amendment under section 103A did not preclude the claimant from adducing evidence relevant to whether capability was the true reason, subject to the tribunal's control of relevance and admissibility.

Appeal from the Employment Appeal Tribunal (Recorder Luba QC), UKEAT0097/11/DA (Bailii: [2012] UKEAT 0097_11_1603); permission to appeal to the Court of Appeal was granted (permission noted at first instance and by Sir Stephen Sedley on 15 June 2012).