Marshall v The Learning Trust & Ors (Practice and Procedure: Appellate jurisdiction/Reasons/Burns-Barke)

An Employment Tribunal is not required to formulate and determine a legal basis of personal liability which the claimant has never advanced. This remains so where the claimant is represented by a non-professional. A proposed new case under section 57 of the Disability Discrimination Act 1995 may involve factual and evidential issues which the opposing party has not had to meet.

On appeal, a challenge based on an alleged failure to award a remedy fails where the appellate tribunal finds, after hearing evidence, that the remedy was not pursued at the hearing below.

The claimant, a teacher, brought several Employment Tribunal claims arising from her dismissal. Liability for certain failures to make reasonable adjustments had been established, and outstanding remedy issues later came before the Employment Tribunal chaired by Employment Judge Foxwell.

The Foxwell Tribunal made a remedy award, including costs for an aborted hearing. The claimant appealed on four amended grounds. The material issues were whether the head teacher could be personally liable as an aider and abettor under section 57 of the Disability Discrimination Act 1995, despite that case not having been advanced below, and whether a successful wrongful-dismissal claim had been pursued at the remedy hearing.

1. Appeal allowed in part. The parties agreed that the costs awarded for the aborted remedy hearing had been overstated. The Employment Appeal Tribunal reduced that award from £1,500 to £1,200.

2. The Tribunal had erred in proceeding on the basis that the head teacher was not a respondent to the disability-discrimination claim. Its finding to that effect could not stand. That error did not determine the appeal because the Tribunal had also made an alternative finding that he bore no personal liability for the three relevant failures to make reasonable adjustments.

3. The claimant could not advance a new case under section 57 of the Disability Discrimination Act 1995 that the head teacher knowingly aided the panel members. That argument had not been made before either tribunal. The Employment Tribunal was under no obligation to take and formulate the point for the claimant, notwithstanding her representation at the remedy hearing by her husband. Had it been raised, factual and evidential questions would have arisen as to whether the statutory requirements were met. Ground 3 therefore failed.

4. The alleged wrongful-dismissal damages claim also failed. The EAT heard oral evidence from the claimant's husband and the respondent's counsel, and accepted counsel's contemporaneous note of the remedy hearing. It found that no separate claim for wrongful-dismissal damages had been raised. The premise on which permission had been given for that ground accordingly fell away, and ground 4 was dismissed.

• Employment Appeal Tribunal: This appeal allowed the challenge to the amount of the costs award only, reducing it to £1,200. The remaining grounds failed.
• Employment Tribunal (Foxwell): By a judgment with reasons dated 13 February 2014, it awarded compensation of £10,000 plus interest and ordered costs, including £1,500 relating to the aborted remedy hearing.
• Employment Appeal Tribunal: An earlier appeal from the liability judgment was partly successful and remitted aspects of liability to a fresh tribunal. A later appeal from the Foxwell Tribunal's liability judgment failed.