Engaging with all allegations
In a recent case, the Employment Appeal Tribunal (EAT) has highlighted the importance of addressing all issues identified in a list of issues, including those not originally pleaded, writes Michael Halsey.
In the case of Bogdan v The Cabinet Office, the claimant brought a number of claims against her employer relating to her working conditions. Amongst other complaints, she alleged that she was overworked as a result of a headcount reduction in her team, that she was performing duties above her grade without proper recognition or pay, that she should have been paid at a higher grade, and that her performance appraisal process had been unfair. Following a grievance, the claimant's job was re-evaluated, resulting in an increase of one grade. However, she was dissatisfied with the re-evaluation process and its outcome, particularly the lack of retrospective application of the higher grade.
Shortly after the job evaluation had concluded, the claimant lodged Tribunal claims. At the time, she was a litigant in person. In her claim form, she did not particularise her repeated job re-evaluation requests or allege that the employer's handling of those requests amounted to race discrimination.
Case management and Tribunal decision
An Employment Tribunal judge carried out case management, during which the claimant explained the essence of her claims. A list of issues was produced following the case management hearing. The list of issues for determination included allegations of direct race discrimination, specifically addressing the claimant's arguments regarding her repeated requests for her job to be re-evaluated.
The Tribunal dismissed all of the claimant's claims. However, it failed to address or provide adequate reasons for rejecting the race discrimination allegations that were included in the list of issues but had not been part of the original pleaded claim.
EAT decision
The EAT allowed the appeal in part. Whilst it expressed sympathy for the Tribunal due to the complexity of the case, it found that the claimant's case had been effectively amended through the list of issues. The EAT remarked that it might have been preferable for the case management judge to have required the claimant to formally amend her pleaded case in order to adopt all the listed issues. However, as the list of issues stood, the Tribunal was obliged to address them, and its failure to do so constituted a serious procedural irregularity.
The EAT remitted the undecided issues (specifically those relating to repeated job re-evaluation requests) to a new tribunal for reconsideration. However, it upheld the tribunal’s decision regarding the claimant’s complaint about the persistence of incorrect grading, as the tribunal’s reasoning on that issue was deemed adequate.
Learning points for employers
This case underscores the critical importance of engaging with the list of issues as a definitive record of the claims to be adjudicated. Employers should ensure that their legal teams and representatives carefully track any amendments or clarifications to the claim during the case management process.
Employers facing similar claims should work closely with their representatives to ensure that procedural fairness is maintained, especially when the claimant is a litigant in person. This includes being vigilant about amendments that may expand the scope of the original claim and preparing to address them fully in proceedings.
Additionally, employers should ensure thorough record-keeping of internal processes, particularly when responding to employee requests such as job evaluations. Clear documentation can help demonstrate consistency and fairness, minimising the risk of successful claims.
Michael Halsey is a partner at VWV.
