Mervyn v BW Controls Ltd

An Employment Tribunal must determine the claims actually advanced. It must not construct an alternative case for a self-represented litigant or enter the evidential arena.

A list of issues is a case-management tool rather than an inflexible limit on the Tribunal's jurisdiction. The Tribunal may revisit it where justice requires. Where an unrepresented claimant appears to have abandoned a central claim, the Tribunal should ensure that any withdrawal is clear, informed and deliberate. That duty does not require the Tribunal to press a claimant to retract a factual case consistently maintained throughout the proceedings, particularly where the alternative claim depends on the opposite factual premise.

The claimant brought claims for unfair dismissal and sex discrimination. Her ET1 referred to constructive dismissal and alleged that workplace conduct and stress had caused her to leave.

At a telephone case-management hearing, however, she maintained that she had not resigned and had instead been actually dismissed. The agreed issues consequently required the Employment Tribunal to decide whether she had resigned or been dismissed. The Tribunal found that she had resigned and dismissed the unfair-dismissal claim.

On appeal, the claimant, acting in person, contended that the Tribunal should also have determined a constructive unfair-dismissal claim. The central issue was whether the Tribunal had erred by not exploring or deciding that alternative claim.

1. Appeal dismissed. The Employment Tribunal made no error of law in deciding the claim on the agreed issues and in declining to investigate constructive dismissal further.

2. The ET1 raised a potential constructive-dismissal claim. Although the claimant had not applied the correct legal analysis, its factual allegations could have supported a contention that she left in response to conduct making continued employment intolerable.

3. A list of issues is a useful case-management tool, not an immutable restriction. An Employment Tribunal may revisit it, and was correct to confirm at the start of the hearing that the parties still agreed it. The Tribunal's jurisdiction nevertheless derives from the ET1, and it has no general duty to determine every allegation in it.

4. An Employment Tribunal should ensure that a self-represented litigant understands the nature of an apparent legal claim arising from pleaded facts. If such a litigant elects not to pursue a central claim, the Tribunal should be satisfied that the withdrawal is clear, unequivocal and informed. Those safeguards must be applied without inventing a case for the litigant or entering the factual and evidential arena.

5. Here, constructive dismissal necessarily depended on a resignation. The claimant had consistently denied resigning in correspondence, at case management, in her evidence and in closing submissions. To investigate constructive dismissal further would have required the Tribunal to invite her to retract that fundamental factual position. It was not obliged to do so, and could not be criticised for concluding that no constructive-dismissal claim was being advanced.

• Employment Appeal Tribunal: Appeal dismissed; the Bristol Employment Tribunal had not erred in failing to determine constructive dismissal.
• Employment Tribunal, Bristol: Judgment sent to the parties on 24 November 2017. The claimant's claims for unfair dismissal and sex discrimination were dismissed.