Parekh v London Borough of Brent

Factual and Procedural Background

This appeal arises from an order of the Employment Appeal Tribunal (EAT) dated 16 March 2012, which dismissed an appeal concerning case management in proceedings for "ordinary" unfair dismissal. The Defendant employer cited "capability" as a potentially fair reason for dismissing the Plaintiff employee, who disputed both the reason and the reasonableness of the dismissal.

The central procedural event was a Pre-Hearing Review (PHR) conducted by an employment judge on 15 December 2010. At that time, the Plaintiff was acting in person against the Defendant, a public body, but was represented by solicitors and counsel in the EAT and this court. During the PHR, the employment judge invited the Plaintiff to apply to amend his claim to include "automatic" unfair dismissal on the ground of protected disclosure (i.e., whistleblowing). The Plaintiff applied but the judge refused permission to amend, and the EAT dismissed the Plaintiff’s appeal against that refusal. The Plaintiff no longer pursues a protected disclosure claim directly but incorporates related allegations within his challenge to the capability reason.

The Plaintiff’s ground of appeal is that the employment judge erred in law by drawing up a list of issues for the substantive hearing that excluded the question whether the Defendant had proven the reason for dismissal, effectively preventing the Plaintiff from disputing the capability reason. Permission to appeal was granted on the basis that the employment judge may have lacked power to foreclose that issue at the PHR. The burden of proof on the reason for dismissal rests on the Defendant under the Employment Rights Act 1996.

Between August 2008 and September 2009, the Plaintiff was employed as a school bursar by the Defendant. He was dismissed on capability grounds, which he internally appealed unsuccessfully. His initial claim included unfair dismissal, discrimination, breach of contract, and unlawful deductions, though discrimination claims were withdrawn shortly before the PHR. The Plaintiff mentioned grievances and whistleblowing matters but did not initially dispute the stated reason for dismissal in his claim form.

At the PHR, the judge dismissed the withdrawn discrimination claims and refused the late application to amend to include a protected disclosure claim. The judge recorded a list of issues for the ordinary unfair dismissal claim, focusing on the reasonableness of the Defendant’s treatment of capability as a reason for dismissal, but did not explicitly include the question whether the Defendant had proven capability as the reason for dismissal.

The Plaintiff subsequently applied to vary the order to include the protected disclosure claim and to amend the list of issues to include a challenge to the reason for dismissal. This application was refused. The EAT dismissed the Plaintiff’s appeal against the PHR decisions, holding that the employment judge had the power to delimit issues under the Employment Tribunals Rules of Procedure 2004.

Legal Issues Presented

1. Whether the employment judge at the PHR had the power to exclude from the list of issues the question of whether the Defendant had proven the reason for dismissal (capability).
2. Whether the exclusion of that issue unlawfully prevented the Plaintiff from disputing the reason for dismissal at the substantive hearing.
3. The proper legal effect and status of the list of issues recorded by the employment judge at the PHR.

Arguments of the Parties

Appellant's Arguments

• The employment tribunal’s order at the PHR limited the list of issues to prevent the Plaintiff from challenging the capability reason for dismissal.
• The Plaintiff disputed that capability was the reason for dismissal and contended that the EAT erred in law by upholding the employment judge’s power to restrict the issues in this way.
• The burden under section 98(1) of the Employment Rights Act 1996 lies with the Defendant to prove the reason for dismissal and that it was potentially fair; this could not be determined without evidence.
• The employment judge’s exclusion of the reason for dismissal from the list of issues was either beyond the powers conferred by the 2004 Rules or a perverse exercise of discretion, given that the Plaintiff had never conceded the reason for dismissal.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Maund v. Penwith District Council [1984] ICR 143	Burden on employer to prove the reason for dismissal and that it was potentially fair under s. 98(1) of the Employment Rights Act 1996.	Confirmed that the Defendant must establish the reason for dismissal at the substantive hearing before reasonableness is considered.
Hart v. English Heritage [2006] ICR 655	Case management decisions by employment tribunals are not final and can be revisited or reconsidered.	Supported the view that the list of issues is a case management tool, not a final adjudication, and can be reconsidered if circumstances change.
Land Rover v. Short Appeal No. UKEAT/0496/10/RN (6 October 2011)	Lists of issues agreed in tribunal proceedings generally limit substantive hearing issues.	Clarified that agreed lists usually define the scope of issues but tribunals are not bound slavishly if it impairs proper case determination.
Price v. Surrey CC Appeal No UKEAT/0450/10/SM (27 October 2011)	Employment tribunals must hear and determine cases according to law and evidence, not strictly bound by agreed lists.	Supported the principle that tribunals can depart from lists of issues to ensure lawful and fair hearings.
Kuzel v. Roche Products [2008] ICR 799	Requirement for claimant to produce evidence to cast doubt on employer’s stated reason for dismissal to raise a real issue.	Applied to confirm the Plaintiff must adduce evidence challenging the capability reason, not merely assert it.

Court's Reasoning and Analysis

The court analysed the legal status of the list of issues recorded by the employment judge at the PHR. It rejected the argument that the list constituted a formal "order" restricting the issues; rather, it was part of the reasons for orders dismissing withdrawn claims and refusing amendment. The court held that the employment judge was not exercising a discretion under Rule 10 of the Employment Tribunals Rules 2004 when drawing up the list, as that rule concerns making formal orders, and the list was not such an order.

The list was a case management tool, reflecting the judge’s understanding of the parties’ positions after discussions, not a binding adjudication on substantive facts or law. The court emphasised that case management decisions are not final and can be revisited if circumstances change. It also noted that the Plaintiff had not been prevented from disputing the capability reason at the substantive hearing; the Defendant still bore the burden of proving the reason for dismissal, and the Plaintiff could adduce evidence to challenge it, although he could not advance a positive protected disclosure claim due to refusal of permission to amend.

The court further explained that the Plaintiff’s complaint that the reason for dismissal was excluded from the list misunderstood the nature of the list and the procedural context. The absence of the issue from the list did not amount to a final ruling or order barring the Plaintiff from contesting the reason for dismissal. The court also highlighted that appeals against case management decisions should generally be pursued by applying to the tribunal to reconsider, rather than by appeal to the EAT.

Holding and Implications

The court DISMISSED the appeal.

The court held that no question of law arose from the employment judge’s list of issues or the proceedings before the EAT that would confer jurisdiction for the appeal. The list was not a formal order excluding the Plaintiff from disputing the reason for dismissal. The Defendant remains obliged to prove the reason for dismissal at the substantive hearing, and the Plaintiff retains the opportunity to challenge that reason by adducing evidence. No new precedent was established; the decision clarifies the procedural status of lists of issues in employment tribunal case management and confirms the limited scope for appeals on such matters.