Connect Personnel Ltd v Domanska

An employment tribunal may determine an issue that has emerged during the hearing without a formal amendment to the claim where the issue is sufficiently raised by the pleadings and evidence, the respondent is on notice of it, and a fair hearing remains possible without unfair prejudice. The rule that a tribunal should ordinarily confine itself to pleaded issues does not prevent it from resolving a properly live issue within the parties’ dispute.

The claimant alleged that her engagement by an employment agency had ended because she was pregnant. The Employment Tribunal found that she had both an employment relationship for maternity-cover work and a separate temporary-worker contract. It held that the agency ended the latter contract because of pregnancy and upheld her discrimination complaint.

The agency appealed on liability only. It contended that the Tribunal had decided an unpleaded case concerning termination of the temporary-worker contract, without allowing a formal amendment. The central issue was whether that point had been sufficiently raised during the proceedings and could fairly be determined.

1. Appeal dismissed. The Tribunal was entitled to determine whether the temporary-worker contract had been terminated because of pregnancy.
2. The principle in Chapman v Simon, [1994] IRLR 124, requires a tribunal ordinarily to confine itself to issues raised by the claimant, subject to a permitted amendment. It did not govern this case in the same way because the respondent was clearly on notice of the relevant point.
3. The pleadings put in issue the claimant’s status, the manner in which each relationship ended, and whether pregnancy was the reason. The respondent’s own response distinguished between the ending of the assignment and the continuing temporary-worker relationship.
4. The issue was also sufficiently raised in the evidence, particularly through the questioning of the respondent’s manager, and was plainly live when counsel addressed it in closing submissions. The Tribunal’s conclusion therefore responded to issues arising directly from the parties’ pleadings.
5. Applying the fair-trial approach explained in Ministry of Defence v Hay, [2008] ICR 1247, this was an expansion and formulation of the issues during the hearing, not a case requiring a formal amendment. The respondent had every opportunity to answer the point and suffered no unfairness. The Tribunal properly assisted an unrepresented claimant in formulating the issue within the applicable legal framework.

• Employment Appeal Tribunal: dismissed the respondent’s appeal against the liability finding.
• Employment Tribunal (London South): by a reserved judgment with reasons dated 11 July 2012, upheld the claimant’s pregnancy-discrimination complaint and awarded compensation. Quantum was not challenged on appeal.