Tribunal Procedure: List of issues not pursued by claimant
In Kouchalieva v London Borough of Tower Hamlets UKEAT/0188/18/JOJ the EAT had to consider whether the tribunal had made an error or not. The Claimant, representing herself, had brought claims against her former employers, the London Borough of Tower Hamlets, of unfair dismissal and disability discrimination. In some cases, the employment tribunal will order that a preliminary hearing takes place before the main employment tribunal hearing, as a way of helping the judge understand the case and make arrangements for the main hearing. These are usually used when the case is complicated or involves discrimination, as it was here. At the Preliminary Hearing a list of issues was agreed between the parties but, at the final hearing, the unrepresented Claimant did not lead any evidence in relation to a number of issues in that list. In the judgment, the tribunal noted that they had not been pursued, and on finding they were now out of time, declined to extend time.
At appeal, the Claimant’s counsel argued that the tribunal erred in law in failing to address the agreed list of issues because the tribunal has as its overriding objective to ensure that the parties were on an equal footing, so far as is practicable. He suggested that if the tribunal realises that an unrepresented Claimant has failed to address a particular issue, the ET should raise the matter with the Claimant and ask them whether they intend to abandon the claim. He also suggested that if the unrepresented Claimant has failed to address a particular issue then the Respondent should also bring the matter to the Claimant’s attention, and to the ET’s if the matter has not been remedied satisfactorily. However, the Respondent argued that the list of issues is a case management tool, not a pleading, and the tribunal was under no duty to raise specifically with a litigant every issue which the litigant has not pursued during the hearing.
The EAT concluded that the tribunal was not under a duty to draw the neglected issues to the Claimant's attention. It could not treat the issues as having been withdrawn, but it could take the failure to actively pursue the issues into account in exercising its discretion as to whether to extend the time limit. It found the issues the Claimant had not actively pursued to have been out of time.
Published: 29 April 2019
Article Sections: Tribunal Proceedings