London Luton Airport Operations Ltd & Anor v Levick

An Employment Tribunal may not determine a disability-discrimination claim on an impairment which the claimant has not pleaded, where the opposing party objects and no amendment has been sought or granted. A reference to a condition solely in the compensation section of an ET1 does not, without more, plead that condition as the disability relied upon.

Parties are entitled to expect litigation to be conducted according to issues defined at a preliminary hearing. The list may be amended or supplemented, but that requires a case-management decision made in accordance with the overriding objective. An Employment Judge must address an application, or the need for leave, to amend before deciding the case on a materially different basis.

The claimant brought disability-discrimination complaints against his employer and an individual respondent. His ET1 identified atrial fibrillation as the physical impairment relied upon. It referred to depression only when describing compensation sought. The agreed list of issues similarly asked whether he had the physical impairment of atrial fibrillation.

At a preliminary hearing to determine disability status, the claimant relied principally on depression. Despite the respondents' objection, no application was made to amend the ET1 or the list of issues. The Employment Judge found that the claimant was disabled by reason of depression, but not by reason of atrial fibrillation.

The respondents appealed on the ground that the Tribunal had decided an unpleaded case outside the defined issues.

1. Appeal allowed. The Employment Judge's finding that the claimant was disabled by reason of depression was set aside, and the underlying Employment Tribunal proceedings were dismissed.
2. The ET1 could sensibly be read only as advancing disability discrimination based on atrial fibrillation. Its passing reference to depression concerned compensation. It did not plead depression as the impairment relied on. The pleaded reasonable adjustments also concerned atrial fibrillation, not depression.
3. An Employment Tribunal cannot decide a claim on a basis not advanced in the ET1 where the other party objects and there has been no amendment. That defect alone disposed of the appeal. Deciding the claim by reference to depression would also have left the pleaded adjustments disconnected from the impairment found.
4. The defined list of issues provided a separate and decisive reason. Following Scicluna v Zippy Stitch Ltd & Ors [2018] EWCA Civ 1320, parties may expect Employment Tribunal litigation to proceed according to issues defined at a preliminary hearing.
5. A list of issues may be amended or augmented, but this is a case-management matter. The Employment Judge gave no reason why an implicit amendment was consistent with the overriding objective. No application for leave to amend was made and no consideration was given to whether leave should be granted. Since the claimant had already been found not disabled by atrial fibrillation, no issue remained for determination.

• Employment Appeal Tribunal: allowed the respondents' appeal, set aside the finding that the claimant was disabled by reason of depression, and dismissed the underlying proceedings.
• Employment Tribunal, Watford: by a judgment dated 19 September 2018, found the claimant disabled by reason of depression under Equality Act 2010, while finding that atrial fibrillation did not make him disabled.