Factual and Procedural Background
This appeal arises from a decision of the Employment Tribunal ("the ET") sitting at Bristol, which dismissed the Claimant's claims for unfair dismissal and sex discrimination. The ET Judgment was issued on 24 November 2017, with written reasons provided on 21 December 2017. The Claimant represented herself on appeal, while the Respondent was represented by counsel.
The Claimant had initially brought claims including unfair dismissal, constructive dismissal, and sex discrimination. The ET1 form submitted by the Claimant included allegations that she had to leave her workplace due to stress caused by the Respondent's conduct, describing events leading to her departure on 14 November 2016. The Respondent denied these claims, asserting that the Claimant had resigned and that any dismissal was fair.
The ET held a Telephone Case Management Hearing on 8 February 2017, which identified the issues for the Final Hearing as claims of unfair dismissal and sex discrimination only, excluding constructive dismissal based on the Claimant's stated position that she did not resign. The ET's substantive decision found that the Claimant had resigned, rejecting the unfair dismissal claim.
The Claimant contended on appeal that the ET failed to properly consider her alternative claim of constructive dismissal, which she argued was pleaded in her ET1 and related documents, and that as a litigant in person, the ET should have explored this claim further rather than exclude it from the issues.
Legal Issues Presented
- Whether the Claimant made a claim of constructive dismissal in her ET1.
- Whether the list of issues agreed at the Telephone Case Management Hearing bound the ET at the substantive hearing.
- Whether the ET was obliged to consider the constructive dismissal claim or to ensure that the Claimant had advertently withdrawn it, particularly given her status as a litigant in person.
Arguments of the Parties
Appellant's Arguments
- The Claimant submitted that her ET1 and accompanying documents clearly included a constructive dismissal claim, which the ET acknowledged but did not properly consider.
- She argued that the ET excluded her constructive dismissal claim through the case management order and did not allow her to present evidence on it at the hearing.
- As a self-represented litigant, the ET had a duty to consider her alternative pleaded case or to confirm that she had knowingly abandoned it.
- She relied on her letter and text messages, particularly one stating she was "not ok" and could no longer work for the company, as evidence supporting a constructive dismissal claim.
- The Claimant contended that the ET's finding that she had resigned should have been followed by an inquiry into whether that resignation was in response to a fundamental breach, constituting constructive dismissal.
Respondent's Arguments
- The Respondent submitted that the Claimant's original Notice of Appeal did not raise the issue of constructive dismissal and that the Claimant consistently maintained she had not resigned.
- They argued that the ET1 was unclear but that the ET3 and subsequent proceedings made clear the Respondent's case that the Claimant had resigned.
- The Respondent contended that the Case Management Hearing properly identified the issues and that the Claimant agreed to the list of issues excluding constructive dismissal.
- They relied on legal authority establishing that the ET is bound to hear claims as presented and that case management decisions can be revisited but were not here challenged.
- The Respondent argued there was no error of law in the ET's approach and that the Claimant's attempt to advance a constructive dismissal claim on appeal was inconsistent with her evidence and submissions at the ET.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Land Rover v Short UKEAT/0496/10 |
Employment Tribunal must determine claims actually brought, limited to agreed issues. |
Supported the principle that the ET decides claims as presented, not claims which might have been brought. |
| Parekh v London Borough of Brent [2012] EWCA Civ 1630 |
Lists of issues generally limit the substantive hearing; case management decisions can be revisited. |
Confirmed that the ET is not bound slavishly to the list of issues and can revisit case management decisions. |
| Muschett v HM Prison Service [2010] EWCA Civ 25 |
ET must not invent a case for a litigant in person or step into the factual/evidential arena. |
Guided the court on limits of ET's role in assisting litigants in person without overstepping. |
| Mensah v East Hertfordshire NHS Trust [1998] IRLR 531 |
ET is not under a general duty to hear every allegation in ET1 unless abandoned. |
Clarified ET's discretion in dealing with claims raised in ET1, even for litigants in person. |
| Segor v Goodridge Actuation Systems Limited UKEAT/0145/11 |
Concessions or withdrawals by litigants, especially unrepresented, must be clear, unequivocal, and understood. |
Emphasized care required before accepting abandonment of claims by litigants in person. |
| Hart v English Heritage [2006] IRLR 915 |
Employment Judge can revisit case management decisions in exceptional cases to deal justly. |
Supported the proposition that case management decisions are not final and can be reconsidered. |
| Scicluna v Zippy Stitch Ltd & Ors [2018] EWCA Civ 1320 |
Case management decisions may differ where professional advocates are involved. |
Distinguished the treatment of litigants in person from represented parties regarding issue lists. |
| Brangwyn v South Warwickshire NHS Foundation Trust [2018] EWCA (Civ) 2235 |
ET may revisit and amend list of issues at Final Hearing. |
Supported ET's power to revisit issues at final hearing, as was done in this case. |
| Chapman & Anor v Simon [1994] IRLR 124 |
ET's jurisdiction derives from the ET1; no jurisdiction to consider claims not made therein. |
Confirmed limits on ET's jurisdiction based on claims presented in ET1. |
Court's Reasoning and Analysis
The court addressed three key issues: whether the Claimant had made a constructive dismissal claim in her ET1; whether the agreed list of issues from the Telephone Case Management Hearing bound the ET at the substantive hearing; and whether the ET was obliged to consider the constructive dismissal claim or ensure the Claimant had knowingly withdrawn it.
The court acknowledged that the ET1 contained factual allegations consistent with a constructive dismissal claim, despite the Claimant's lack of legal framing and representation. It accepted that the Claimant's ET1 described circumstances amounting to a potential constructive dismissal claim.
However, the Claimant had consistently stated she did not resign and did not intend to resign, which was reflected in the case management process and the list of issues for the final hearing. The ET was entitled to rely on this position and focus on the actual dismissal claim only.
The court noted established legal principles that case management decisions, including issue lists, are tools to manage proceedings and can be revisited, but the Claimant had not challenged the case management order or sought to amend the issues during the ET proceedings.
Given the Claimant's clear and consistent position denying resignation, the ET was not obliged to explore or investigate a constructive dismissal claim that depended on resignation. Doing so would have required the ET to challenge the fundamental factual basis of the Claimant's case, effectively entering the evidential arena, which is inappropriate.
The court emphasized that while ETs must take care with litigants in person, they are not required to invent cases or probe beyond the issues presented when the litigant has clearly adopted a particular position. The ET's approach was therefore reasonable and lawful.
Holding and Implications
The appeal is DISMISSED.
The court held that the Employment Tribunal did not err in law by limiting its consideration to the claims of unfair dismissal and sex discrimination as identified in the case management process and by not investigating the constructive dismissal claim which the Claimant had effectively abandoned through her consistent denial of resignation.
The direct consequence is that the ET's decision dismissing the Claimant's claims stands. No new precedent was established beyond reaffirming the principles governing ET jurisdiction, case management, and the treatment of litigants in person in relation to constructive dismissal claims.