Rajaratnan v Care UK Clinical Services Ltd

Whether an employment claim is included in a tribunal’s list of issues depends on its substance, not on whether the correct legal label has been used. Where the pleaded facts support a claim within the tribunal’s jurisdiction, the claim may be sufficiently identified despite an absent statutory label.

However, an error in excluding such a claim is immaterial where unchallenged findings at the substantive hearing necessarily mean that the claim would have failed. The Employment Appeal Tribunal cannot use an appeal from an earlier case-management decision to interfere with a later substantive judgment that has not been appealed.

The claimant appealed from an Employment Tribunal case-management decision which held that its list of issues did not include constructive automatic-unfair-dismissal claims founded on regulation 7 of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 and section 104C of the Employment Rights Act 1996. The Tribunal also refused a late application to amend.

At a later substantive hearing, the Tribunal dismissed the claimant’s unfair-dismissal claims after deciding the factual allegations underpinning them. That later decision was not appealed insofar as it concerned constructive dismissal and the relevant factual findings. The central issues were whether the disputed claims were already within the list of issues, whether amendment should have been permitted, and what consequence followed from any error.

1. Appeal dismissed. The Employment Tribunal erred in law in construing the list of issues as excluding the regulation 7 and section 104C claims. The question was one of law. The list sufficiently articulated the alleged facts: that the respondent had fundamentally breached the contract by its reaction to the claimant’s flexible-working request and to her working-time assertions. The absence of the correct legal labels did not determine whether those claims were included.

2. The claimant’s reliance on Grimmer v KLM City Hopper UK [2005] IRLR 596 supported the applicable approach. The material question was whether it could be discerned from the claim as presented that the claimant complained of a breach of an employment right within the Tribunal’s jurisdiction.

3. It was unnecessary to decide the amendment issue. In any event, the Tribunal’s refusal of permission to amend was open to it in the detailed procedural context. The decision did not rest on lateness alone. Its reasons were adequate in light of rule 62(4) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.

4. The error concerning the list of issues was immaterial. The substantive Tribunal had considered all the underlying factual allegations and had made findings which meant that the additional constructive-dismissal claims would inevitably have failed. The claimant suffered no prejudice because those claims raised no new factual issues.

5. The EAT had no jurisdiction to set aside or alter the later substantive decision. There was no appeal from that decision challenging its findings on constructive dismissal and the associated facts. Accordingly, the appeal from the earlier case-management decision was dismissed.

• Employment Appeal Tribunal: Dismissed the appeal from the Employment Tribunal’s first case-management decision. Although the Tribunal had erred in construing its list of issues, the error was immaterial.

• Employment Tribunal (Watford): In Decision 1, sent on 4 April 2014, determined the scope of the issues and refused amendment. In Decision 2, sent on 2 July 2014, dismissed the automatic-unfair-dismissal and sex-discrimination claims, while upholding certain flexible-working and detriment complaints. The relevant substantive findings in Decision 2 were not appealed.