H Hassan v BBC

An Employment Tribunal must identify and manage the claims actually pleaded. A list of issues must not prevent a claimant from pursuing a properly arguable claim, but it may define an unclear case by reference to the pleadings and earlier case-management decisions.

Additional claims need not be included where they do not clearly emerge from the pleaded case. It may be unfair and contrary to the overriding objective to expand the case at a late stage where that would undermine earlier rulings on time limits and amendments.

The claimant appealed against a London Central Employment Tribunal order of 7 April 2022 which confined her disability discrimination and victimisation claims to the requirement, made on 13 September 2019, that she return to her BBC Arabic radio role.

She contended that her ET1 also advanced claims based on refusals to move her in 2017 and 2018. Earlier preliminary hearings had addressed time limits and amendments. The Tribunal had characterised the original discrimination claims as centred on the September 2019 decision.

The central issue was whether the list of issues improperly cut down the claimant’s pleaded case.

1. Appeal dismissed. The appeal was not academic. Although the list of issues was reconsidered at the outset of the merits hearing, the additional claims advanced in the appeal had not then been revisited.

2. A list of issues is a case-management tool which must accurately reflect the claims made. It cannot prevent a claimant from pursuing a properly arguable claim. Equally, an Employment Tribunal must identify the actual claims and issues at an early stage so that it can manage the proceedings fairly and justly under the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013.

3. The alleged 2017 and 2018 claims did not clearly emerge from the ET1 or the later particulars. The claimant accepted that they did not “shout out” from the pleadings. The narrative could reasonably be understood as background to the September 2019 claims or to the constructive dismissal claim, rather than as separate reasonable-adjustment or victimisation claims.

4. The Employment Judges who determined time limits and the amendment application had necessarily considered the nature and scope of the original claims. Their characterisation of the case as a narrow claim concerning the September 2019 refusal to permit a move was careful and sustainable.

5. Adding the alleged 2017 and 2018 claims at the list-of-issues stage would have expanded the case after substantial case management. It would have been inconsistent with the earlier extension-of-time and amendment decisions, undermined that management, and been unfair to the respondent. The Tribunal therefore made no error of law in defining the issues by reference to the 13 September 2019 requirement.

• Employment Appeal Tribunal: dismissed the claimant’s appeal against the list-of-issues order.
• London Central Employment Tribunal: on 7 April 2022, defined the remaining discrimination and victimisation issues by reference to the requirement of 13 September 2019 that the claimant return to BBC Arabic Radio. At the subsequent merits hearing, the claimant’s remaining claims were dismissed after she failed to attend.