Mervyn v BW Controls Ltd

An employment tribunal should, at the start of a substantive hearing involving an unrepresented party, consider whether an earlier list of issues accurately reflects the significant disputes. If it clearly does not, or may not, the tribunal should consider whether amendment is necessary in the interests of justice.

The assessment is fact-sensitive. Relevant matters include the stage of the proceedings, whether lawyers agreed the list, and whether amendment would delay or disrupt the hearing. Clarifying an unrepresented party’s pleaded claims does not itself involve entering the factual or evidential arena. A tribunal must nevertheless avoid inventing a claim or helping a party to find supporting evidence.

The claimant, acting in person, brought an unfair dismissal claim after leaving her employment. Her claim form and related documents described circumstances capable of supporting constructive dismissal, while she maintained that she had not resigned. A case management order consequently confined the claim to ordinary unfair dismissal.

The employment tribunal found that the claimant had resigned and dismissed the claim without deciding constructive dismissal. The Employment Appeal Tribunal dismissed her appeal, although it accepted that the claim form raised a potential constructive dismissal case.

The central issue was whether the tribunal should have reconsidered the list of issues and treated ordinary and constructive unfair dismissal as alternatives.

1. Appeal allowed. The constructive dismissal claim was remitted for rehearing. The tribunal’s existing findings of fact were to stand, including its finding that the claimant resigned on 14 or 15 November 2016.

2. An agreed list of issues is an important case management tool, but it is not a binding adjudication of substantive fact or law. A tribunal need not adhere to it where that would impair its core duty to determine the case according to the law and evidence. Under Rule 29 of the Employment Tribunals Rules of Procedure 2013, an earlier case management order may be varied where necessary in the interests of justice.

3. Whether amendment is necessary depends on the circumstances. Relevant factors include the stage at which amendment is considered, whether the list resulted from agreement between legal representatives, and whether amendment would delay or disrupt the hearing. The reference in Scicluna v Zippy Stitch [2018] EWCA Civ 1320 to exceptional cases did not impose a universal exceptionality requirement.

4. Where either party is unrepresented, it is good practice at the start of the substantive hearing to consider whether an earlier list properly reflects the significant issues. A tribunal may clarify the substance of pleaded claims and whether any claim has knowingly been abandoned. It must not invent a new case, investigate possible evidence for a party, or otherwise enter the factual and evidential arena.

5. Here, the claim form and response clearly raised constructive unfair dismissal as an alternative. The documentary material also indicated that resignation was much more likely than dismissal, making the reason for resignation the real issue. Merely asking the parties to confirm the existing list was insufficient. Raising and adding the alternative issue would not have involved inventing a new complaint or entering the evidential arena.

6. The amendment was necessary in the interests of justice. The pleaded allegations and available witnesses meant that the constructive dismissal issue could have been tried without significant delay or disruption. It could not be said that consideration of that issue would have made no difference. The rehearing was limited to whether the established resignation entitled the claimant to terminate without notice by reason of the employer’s conduct.

1. Court of Appeal (Civil Division): The appeal was allowed. The constructive dismissal claim was remitted for rehearing, while the employment tribunal’s previous factual findings were preserved: [2020] EWCA Civ 393.
2. Employment Appeal Tribunal: Elisabeth Laing J dismissed the appeal, holding that the employment tribunal had not erred by declining to investigate constructive dismissal where the claimant consistently maintained that she had not resigned: UKEAT/0140/18/BA.
3. Employment Tribunal: The tribunal found that the claimant had resigned and dismissed her unfair dismissal claim. It did not determine whether the resignation amounted to constructive dismissal.