Millin v Capsticks Solicitors LLP & Ors

An agreed list of issues is a case-management tool, not a formal pleading or contract. It will ordinarily identify and limit the issues for hearing, but an employment tribunal need not follow it slavishly where that would prevent a just determination according to the law and evidence. Its meaning must be assessed in its textual and litigation context, including how the parties and tribunal understood and used it.

Under the Employment Tribunal Rules, a costs order requires a three-stage decision: whether the prescribed conduct is present, whether an order is appropriate, and what amount should be ordered. A discrimination claim based only on protected status and different treatment is misconceived where there is no evidence from which discrimination could be inferred. The absence of a costs warning or deposit order is relevant but not mandatory.

The claimant, an experienced employment barrister, resigned from the first respondent’s employment and brought two claims. The first alleged sex discrimination. The second alleged further sex discrimination and constructive unfair dismissal.

Her appeal against the second liability decision was confined to the alleged failure to appraise her and to the tribunal’s adverse credibility findings. She contended that a case-management list of issues recorded a binding concession that no appraisals had occurred.

In a separate appeal, she challenged an order for costs in respect of both claims, which the Employment Tribunal had found misconceived from the outset and unreasonably pursued. The central issues were the legal effect of the list of issues and whether the costs order fell within the tribunal’s discretion.

1. Both appeals were dismissed. The Employment Tribunal was entitled to reject the constructive-dismissal complaint. The list of issues did not contain an agreed factual concession that no appraisal had been carried out since 2007.

2. A list of issues is not to be construed with the formality of a contract, pleading or statute. It is a practical case-management instrument designed to focus the real disputes. Although an agreed list will generally limit the issues, an Employment Tribunal may revisit it where rigid adherence would impair its duty to determine the case justly on the evidence and in accordance with law: [2012] EWCA Civ 1630.

3. On its wording and wider context, the relevant entry stated the claimant’s assertion of an express contractual term and alleged breach; it did not record an admission. The preceding exclusion of an allegation concerning Mr Hay, the parties’ conduct at the hearing, the failed amendment application, and the absence of any contemporaneous reliance on a concession all confirmed that conclusion. In any event, the tribunal could appropriately determine whether appraisals had occurred, since that was relevant to whether Mr Hamilton was in breach.

4. The credibility challenge disclosed no legal error. Credibility included the reliability and openness of the claimant’s account. The tribunal could take account of her insistence on a formal definition of appraisal while her own conduct had hindered creation of a written appraisal record. Its other findings independently sustained its credibility assessment.

5. Under Rules 40 and 41 of the Employment Tribunal Rules of Procedure, the tribunal correctly addressed whether the prescribed conduct existed, whether costs were appropriate, and the amount. The discrimination claims lacked evidence beyond status and differential treatment. It was open to the tribunal to find them misconceived and unreasonably continued. The claimant’s professional experience, the sustained pursuit of allegations shown to be baseless, her means, and the absence of any costs warning were all relevant discretionary considerations. No warning or deposit order was a precondition to costs.

• Employment Appeal Tribunal: dismissed the claimant’s appeals against the Employment Tribunal’s second liability decision and subsequent costs order.
• Employment Tribunal, London South: dismissed the second claim, including constructive unfair dismissal, and later ordered costs to be assessed by the County Court on the standard basis. The first sex-discrimination claim had previously been rejected on 25 July 2011.