Niall McMullan, Associate Partner, considers a recent decision which calls into question the necessity of Legal and Factual issues in an Industrial Tribunal claim.
In the early stage of an Employment Tribunal case, the parties may be required to identify and agree Legal and Factual Issues in dispute which the Tribunal must determine after hearing all the evidence.
In the recent Northern Ireland Court of Appeal (NICA) case Lindsay Knox v Henderson Retail Ltd , the Company appealed against the original decision of the Tribunal that the Claimant had been constructively dismissed. Of particular interest in the Appeal is the direction by the NICA with regards to the Legal and Factual Issues and how confined, if at all, the Tribunal are to these in reaching its decision.
Amongst other Appeal points, the Respondent/Appellant referred to the record of “the precise legal and main factual issues” and asserted this document confined the Tribunal from stepping outside those agreed issues. It argued that the Tribunal risked conducting “its own investigation of the Claimant’s grievance” exposing itself to “an error of law or perverse”.
The NICA did not accept that the list of “main factual issues narrowly confined the Tribunal to a consideration of those and nothing more” stating that the Tribunal was, in fact, entitled to look behind or beyond the grievance process when “logic or law” required it to do so.
In its decision, the NICA referred to the case of Parekh v The London Borough of Brent  wherein a list of issues was described as a “useful case management tool”.
Further, the NICA went on to quote:
“As the Employment Tribunal that conducts the hearing is bound to ensure that the case is clearly and efficiently presented, it is not required to stick slavishly to the list of issues agreed where to do so would impair the discharge of its core duty to hear and determine the case in accordance with the law and the evidence”
The NICA concluded that the Tribunal was “entitled and indeed obliged to consider the factual antecedents of the grievance process”.
The NICA unanimously dismissed the Appeal.
This decision calls into question the necessity of Legal and Factual issues in an Industrial Tribunal claim.
Niall McMullan is an Associate Partner in Worthingtons Commercial Solicitors, Belfast, where he specialises in Employment Law including workplace disputes, unfair dismissal, redundancy claims, fair employment, sex, disability, race and age discrimination claims and Public Interest Disclosure.