Millin v Capsticks LLP & Ors

An Employment Tribunal is generally entitled to determine a case by reference to an agreed list of issues. It should not be criticised for failing to decide a matter outside that list. Conversely, where a party has made a concession within the agreed issues, the Tribunal should adhere to it unless it formally amends the issues.

An appellant may not ordinarily revive, after substantial delay, a ground omitted from a substituted notice of appeal settled with legal assistance, particularly where the respondent would suffer prejudice. A Tribunal may incorporate an earlier judgment by reference if its reasons, read by parties who attended the hearing, adequately explain the factual findings, legal approach and conclusions.

The claimant appealed at a rule 3(10) hearing from the Employment Tribunal's second judgment on constructive unfair dismissal and sex discrimination, and from its third judgment on costs. The substantive claims had included allegations under sections 95 and 98 of the Employment Rights Act 1996 and sex discrimination.

She sought permission to add an omitted complaint concerning the treatment of Ashley Irons. She also contended that the Tribunal had wrongly departed from a concession that contractual appraisals had not been carried out since 2007, and that the Tribunal's reasons were inadequate. The central questions were whether the late amendment should be allowed, whether the agreed list of issues had been followed, and whether any ground had a reasonable prospect of success.

1. The appeal was allowed in part. The Ashley Irons amendment was refused and the associated ground was dismissed. The reasons ground was also rejected. The appraisals ground was permitted to proceed to a full hearing, as was the related costs appeal.

2. The proposed amendment came more than a year after the claimant had filed a substituted notice of appeal, drafted by leading counsel, which omitted the point. Nothing in the earlier proceedings had prompted its reintroduction. Finality in litigation and prejudice to the respondents, including the passage of time affecting the Employment Judge's ability to recall deliberations, made it inappropriate to exercise discretion in the claimant's favour. The approach in Khudados v Leggate, [2005] ICR 1013, supported that conclusion.

3. In any event, the Irons comparison was not part of the agreed list of issues. The Tribunal was entitled to determine the case by that agreed list, particularly where it had been settled after a case-management hearing. Its findings accepting the respondents' evidence were also capable of covering the point. The ground had no reasonable prospect of success.

4. The same principle assisted the claimant on the appraisals issue. The agreed list recorded the respondents' concession that appraisals were contractually required and had not been conducted by the relevant individuals since 2007. The Tribunal appeared instead to find that appraisals had occurred and thereby avoided considering fundamental breach. That departure from the agreed concession was reasonably arguable and required a full hearing.

5. The reasons ground failed. The Tribunal's second judgment expressly incorporated its first judgment. Incorporation by reference was permissible, and the parties could understand why the Tribunal had decided each agreed issue. The reasons did not fail the Meek standard.

• Employment Appeal Tribunal: At a rule 3(10) hearing, the EAT refused a late amendment and dismissed the Ashley Irons and reasons grounds. It allowed the appraisals ground, and consequentially the costs appeal, to proceed to a full hearing.
• Employment Tribunal: The second judgment determined constructive unfair dismissal and sex-discrimination claims. A third judgment dealt with costs. The citations of those judgments were not stated in the judgment.