Shirley Okeze v Cygnet Health Care Limited

An Employment Tribunal will ordinarily determine liability and remedy at the same final hearing unless it orders separate hearings. It may split those issues where that course accords with the overriding objective, but parties who need clarity about when evidence must be led should raise the matter with the tribunal.

An agreed list of issues will generally define the substantive issues, but it is a case-management tool rather than an inflexible constraint. An obsolete draft list, or a judgment’s summary of remaining liability issues, is not necessarily a formal agreed list. Where parties are professionally represented, their failure to prepare and lead available remedy evidence does not ordinarily create procedural unfairness.

The claimant appealed against an Employment Tribunal decision which partly upheld her direct race-discrimination claim. The Tribunal found that the respondent had failed to investigate her concerns and had provided an inaccurate reference. It awarded £3,000, plus interest, for injury to feelings but made no financial-loss award because no evidence of such loss had been led.

The Tribunal later refused reconsideration, declining to admit unexplained new evidence of alleged financial loss. The claimant contended that remedy was not before the Tribunal because it was absent from the list of issues, and alternatively that her representative had applied to defer financial loss to a later hearing.

The central issue was whether the Tribunal’s determination of remedy at the same hearing as liability involved a material procedural irregularity causing unfairness.

1. Appeal dismissed. The Employment Tribunal committed no material procedural irregularity by determining remedy at the final hearing.

2. In Scottish Employment Tribunals, liability and remedy are ordinarily dealt with together unless the Tribunal directs otherwise. That default promotes efficient listing, avoids delay and assists informed settlement. Rule 57 of the Employment Tribunals Rules of Procedure 2013 permitted separate final hearings for liability, remedy or costs, but did not require them. A Tribunal may split issues where the overriding objective so requires.

3. The claimant had clear notice that remedy could be decided at the final hearing. Case-management orders required a schedule of loss and its inclusion in the final-hearing bundle. The hearing notice also stated that three days had been allocated for full disposal, including remedy if appropriate. Her professionally prepared schedule neither itemised nor quantified financial loss, despite the respondent having identified that deficiency well before the hearing.

4. The 2020 draft document was not a surviving formal list of issues. It had been overtaken by dismissed, withdrawn and newly particularised claims. The Tribunal’s later judgment merely identified the remaining liability issues, as required by rule 63(5), and was not an agreed exhaustive list governing remedy. Although an agreed list will generally limit substantive issues, it is a case-management tool and may be revisited where necessary.

5. There was no evidential basis for finding that the claimant’s representative applied to defer financial loss. The representative withdrew a submission seeking financial loss after the Tribunal identified the absence of quantification and evidence. The Tribunal was therefore not required to determine a non-existent application. Its refusal to reconsider, in the absence of an explanation for the late evidence, was also unimpeachable.

• Employment Appeal Tribunal: dismissed the claimant’s appeal against the remedy decision.
• Employment Tribunal: partly upheld the direct race-discrimination complaint, awarding £3,000 plus interest for injury to feelings and no financial-loss compensation; it subsequently refused reconsideration.