Seymour v Fitness First Clubs Ltd

An Employment Tribunal is not required, of its own motion, to determine every allegation pleaded in an ET1 where the claimant has not pursued that allegation through evidence or argument. Where the claimant had an opportunity at a pre-hearing review to advance a statutory complaint but did not do so, the tribunal may treat it as no longer a live issue. Its failure to determine that complaint is not a procedural irregularity.

The claimant appealed from a pre-hearing review in the Employment Tribunal at Leeds. His claims for unauthorised deductions, holiday pay and detrimental treatment on health and safety grounds had been considered. All but the holiday-pay claim were struck out; the holiday-pay claim was later compromised.

The claimant contended that the Employment Judge had overlooked his health and safety complaint under section 44(1) of the Employment Rights Act 1996. The Employment Judge subsequently confirmed that the complaint had been discussed and that the claimant had said he did not intend to pursue it. The central issue was whether the complaint had been overlooked or whether the claimant had been prevented from pursuing it.

1. Appeal dismissed. The Employment Appeal Tribunal found no procedural irregularity.

2. The material before the EAT established that the health and safety complaint had been discussed at the pre-hearing review. Counsel had raised the possible section 44 label, and the Employment Judge understood the claimant to say that he did not intend to pursue such a claim. The claimant did not give evidence capable of displacing that account. An adjournment for further evidence would therefore have been unproductive.

3. Applying Mensah v East Hertfordshire NHS Trust [1998] IRLR 531, an Employment Tribunal has no duty of its own motion to ensure that every allegation in an originating application is determined where the claimant has not advanced it in evidence or argument. The claimant had an opportunity to pursue the health and safety complaint but did not do so. The Employment Judge was consequently entitled to treat it as not live and to determine only the wages claim, with the holiday-pay matter deferred.

4. The claimant was not prevented from pursuing the complaint. The alleged omission therefore did not amount to bias, misconduct or a procedural irregularity, and the appeal failed.

• Employment Appeal Tribunal: appeal dismissed.
• Employment Tribunal at Leeds: at a pre-hearing review on 18 September 2012, all claims except holiday pay were struck out for having no reasonable prospect of success. The claimant's review application concerning the section 44(1) complaint was summarily rejected.