Liller v Network Rail Infrastructure Ltd

An employment tribunal must give a clear and reasoned decision on each discrete claim that has been identified for determination and addressed in the evidence and closing submissions. A conclusion on other disability-discrimination claims cannot, without more, imply determination of a distinct claim under section 15 of the Equality Act 2010, because it requires a separate legal analysis.

Where that obligation is not met, the appropriate course is to allow the appeal and remit the unresolved claim. The choice between the same or a fresh tribunal requires a proportionate assessment of fairness, delay, value, the conduct of the original hearing, and whether the original factual findings are challenged.

The claimant, who had anxiety disorder and clinical depression, was summarily dismissed for alleged threats made during a telephone conversation with a counselling service. He brought claims including unfair dismissal and disability discrimination.

At a case-management discussion and in the Tribunal’s order, a claim that dismissal was discrimination arising from disability under section 15 of the Equality Act 2010 was expressly identified. The claim was pursued in the evidence and closing submissions. The London (Central) Employment Tribunal dismissed the claims in a judgment sent on 11 December 2012.

The appeal concerned whether the Tribunal had given a reasoned decision on the discrete section 15 claim concerning dismissal, and, if not, the appropriate remittal tribunal.

1. Appeal allowed. The Employment Tribunal did not determine the claimant’s distinct claim that his dismissal was discrimination arising from disability under section 15 of the Equality Act 2010.

2. The claim had been expressly identified before the hearing, included in the issues for determination, and addressed in the evidence and closing submissions. The Tribunal’s reasoning dealt with treating the remarks as gross misconduct, but contained no express decision on whether dismissal itself contravened section 15.

3. Although a tribunal need not address every argument advanced, it must give a clear decision on a specific claim that it has been required to determine. Its conclusions on other disability-discrimination heads could not imply a decision on this claim. The section 15 dismissal issue required a different mental exercise and careful analysis of a separate cause of action.

4. The EAT did not address the merits of the unresolved section 15 claim. It remitted that claim to the same Tribunal. The original hearing had been conducted without criticism, its detailed factual findings were unchallenged, and a fresh tribunal was not proportionate when balanced against delay and the likely value of the claim. A preliminary hearing should be listed for directions.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and remitted the unresolved section 15 claim to the same Employment Tribunal.
• London (Central) Employment Tribunal: In a judgment sent on 11 December 2012, dismissed the claimant’s claims. The EAT held that it had not given a reasoned decision on the distinct section 15 dismissal claim.