The tribunal's case management powers, and the fair hearing requirements which constrain them. Drysdale v Department of Transport; Mervyn v BW Controls.
Tribunal procedure; addition and substitution of parties. The High Court rules have no application to the tribunal's power to add or substitute parties under what is now rule 35 of the 2024 ET Rules, the power is exercisable at any time, even where the time limit for a fresh claim against the new respondent has expired. An out-of-time application is not an absolute bar but a discretionary factor. Where one respondent (Y) is substituted for another (X), the substitution relates back to the date of the original claim form, so the claim against the substituted respondent is treated as having been lodged in time.
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.
Procedure; list of issues. A list of issues is a case-management tool, not a pleading; a tribunal need not adhere slavishly to an agreed list where doing so would impair its core duty to determine the case on the law and the evidence.
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.
ACAS Early Conciliation; Substitution of Parties. The concept of a 'matter' in s.18A is broad. Where a claimant has validly conciliated regarding a dispute, substituting a respondent (e.g. a subsidiary for a parent company) does not require a fresh EC certificate.
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.
Procedure; default judgments (Rule 22); an employment judge acting under Rule 22 (formerly Rule 21) must actively consider whether a determination of the claim can properly be made on the available material. It is an error of law to enter judgment simply because a claim is undefended without further consideration.
Tribunal procedure; addition of respondents and amendment to scope of claim. Where a claimant seeks both to amend the scope of the claim (e.g. by adding new factual allegations) and to add a further respondent, the tribunal must approach the application in two stages: (1) determine whether to permit amendment of the scope of the claim; and (2) only then, on the determined scope, decide whether to add the proposed respondent. The tribunal had erred by reaching a single composite decision on amendment and joinder without first considering the scope of the substantive complaint as amended.
Procedure; medical evidence; the EAT underscored that Tribunals must engage with medical evidence 'with care' (Para 68). While postponement/expedition applications are highly fact-specific, specific medical evidence remains crucial for ensuring Article 6 rights and making reasonable adjustments to the hearing process.
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.
Practice; AI and citation of authorities. The Divisional Court held that freely available generative AI tools are fundamentally unreliable for legal research as they can produce plausible but entirely fabricated citations ('hallucinations'). Lawyers bear a professional duty to verify all AI-generated output through authoritative sources (BAILII, National Archives, official law reports) before use. Those in leadership positions must implement practical measures ensuring compliance with AI-related professional obligations.
Practice; AI and citation of authorities. Applying the Divisional Court guidance in Ayinde, HHJ Charman found that a solicitor's firm had submitted two fictitious AI-generated case citations. The firm's administrative staff had used a legal software's built-in AI research feature without verification. The judge held the conduct was improper, unreasonable and negligent, ordered wasted costs against the firm, and struck out the claim with indemnity costs.
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.