When a tribunal must decide an issue which neither party has raised. Langston v Cranfield University; Drysdale v Department of Transport.
Redundancy; unfair dismissal; issues taken of the tribunal own motion. HHJ Peter Clark held that selection, consultation and the search for alternative employment are so fundamental to a redundancy dismissal that they are in issue in every such unfair dismissal claim, whether or not the parties raise them, and the employer is expected to lead evidence on each. The foundation of the matter of course line of authority, confined in Whitaker v White Rose Academies Trust and Russell Cherrington v University of Derby to the ordinary application of a single statutory test the tribunal is already applying.
Tribunal procedure; assistance to litigants. The Court of Appeal set out six principles governing the assistance a tribunal should give to a litigant in the formulation and presentation of a case. What is appropriate depends on the circumstances, is constrained by the requirement of impartiality, and is a matter for the judgment of the tribunal hearing the case. A wide margin of appreciation applies and an appellate court will not normally interfere.
Unfair dismissal; appeal; the EAT can only remit to the ET, not substitute its own decision (unless only one outcome is possible).
Remedies; stigma loss; issues taken of the tribunal own motion. Underhill LJ held that the ET should have considered a Chagger stigma claim on the basis of the particular material before it, while making clear that this would not always be so. In Russell Cherrington v University of Derby Cavanagh J held that Small is best regarded as an example of the shouts out line of authority rather than an extension of the matter of course principle.
Tribunal procedure; unpleaded issues. The Court of Appeal held that it shouted out from the claimant particulars of claim that she was alleging constructive dismissal, even though this did not appear in the agreed list of issues, and the ET should have addressed it.
Unfair dismissal; ill health dismissal; issues taken of the tribunal own motion. The EAT held that the ET had failed to address whether the employer should have considered redeployment. Treated by Cavanagh J in Russell Cherrington v University of Derby as an example of the shouts out line rather than the matter of course principle.
Tribunal procedure; unpleaded issues. Warby LJ set out the modern approach to when an ET must identify and determine an issue not raised by the parties: proceedings are adversarial, pleadings matter, the ET role is arbitral rather than inquisitorial, and there is no general duty to prompt a party to expand their case. An ET may depart from an agreed list of issues where a pleaded claim has been omitted without abandonment, or where fairness makes it essential. Failure to take an unpleaded point is an error of law only where no reasonable tribunal would have failed to take it.
Unfair dismissal; Convention rights; points taken of the tribunal own motion. Cavanagh J held that an ET is not required to consider Art. 10 ECHR of its own motion merely because a dismissal concerns speech: the Art. 10 issue did not shout out from a pleaded case whose thrust was procedural unfairness. There is no obligation to consider Convention Articles as a matter of course in unfair dismissal claims, nor any narrower obligation confined to speech cases; the matter of course categories remain limited to consultation and alternative employment in redundancy, the Burchell and Iceland Frozen Foods liability criteria, and the Norton Tool heads of loss. Leave to take the Art. 10 point for the first time on appeal was refused: Convention points attract no special indulgence and the point was not one of pure law.
Tribunal procedure; matter of course issues. HHJ Auerbach held that the ET was not obliged to consider of its own motion whether the claimant was a worker under the extended definition in s.43K(1)(a) ERA 1996 where he had advanced his case on s.230(3) alone. The established matter of course categories are few and concern the ordinary application of a single statutory test; the EAT should be circumspect about extending them. Approved by Cavanagh J in Russell Cherrington v University of Derby.
Anonymity; rule 50; tribunal's own initiative. Where the ET's reasons disclosed the appellant's transgender status and sensitive mental-health matters, this was a rare case in which the EJ was plainly wrong not to consider of his own volition whether a non-disclosure/anonymity order should be made, no rule 50 application having been made at the hearing; appeal allowed, with the parties anonymised in both the ET and EAT judgments. Distinct from the existing KB entry X v Y [2019] IRLR 588 (UKEAT/0265/18), which concerns anonymity on a re-hearing.