EF v ST (Practice and Procedure)

An Employment Tribunal may determine an issue where, viewed practically, it has been sufficiently raised in the pleaded narrative and the identified issues. It need not have been articulated in precisely the form later adopted by the Tribunal.

A finding that a formal disciplinary letter placed a disabled employee at a substantial disadvantage, and that an informal oral warning would have been a reasonable adjustment, was open to the Tribunal on the evidence. There is no freestanding employment claim for bullying. Such conduct must be linked to an actionable cause of action, here disability discrimination.

The disabled Claimant brought claims for failure to make reasonable adjustments, disability-related discrimination under section 15, and breach of contract. The Employment Tribunal dismissed all claims except a reasonable-adjustments complaint concerning a letter requiring her to attend a disciplinary hearing. It awarded £2,000 for injury to feelings and interest.

The Respondent appealed the successful reasonable-adjustments finding. It contended that the issue had not been raised and that the Tribunal had impermissibly substituted an informal warning for the formal letter. The Claimant cross-appealed against the dismissal of her remaining complaints, including alleged bullying and breach of the implied term of trust and confidence.

1. Both appeals were dismissed. The issue concerning the disciplinary letter was sufficiently before the Employment Tribunal. The case-management summary identified a reasonable-adjustments complaint based on the Respondent’s conduct of disciplinary and grievance proceedings, and the Claimant’s resulting disadvantage from communication and information-processing difficulties. That formulation encompassed the letter inviting her to a disciplinary hearing.
2. The general rule that a tribunal determines only issues before it did not assist the Respondent. Applying the practical approach illustrated by London Borough of Southwark v Afolabi [2003] ICR 800, the issue had been sufficiently raised, despite not being separately expressed in the precise terms of the Tribunal’s eventual finding.
3. The substantive reasonable-adjustments finding disclosed no error of law. The Tribunal was entitled to take account of this Claimant’s disability and to find that receipt of a conventional formal disciplinary letter adversely affected her in a way it would not affect an employee without her condition. It was therefore open to the Tribunal to find that an informal oral warning should have been used instead.
4. The Claimant’s remaining appeals raised no point of law capable of impugning the Employment Tribunal’s factual conclusions. Bullying was not a freestanding complaint and required a link to disability or another actionable legal wrong. The Tribunal had permissibly rejected the alleged further failures to make reasonable adjustments and the factual basis for breach of the implied term of trust and confidence.

• Employment Appeal Tribunal: Cross-appeals from the Employment Tribunal’s liability judgment of 14 May 2015 and remedy judgment of 22 July 2015 were dismissed.
• Employment Tribunal: The Tribunal dismissed the Claimant’s claims except for one failure to make reasonable adjustments concerning the disciplinary letter. At remedy it awarded £2,000 for injury to feelings, with interest.