In the recent case of Saha v Capita plc the Employment Appeal Tribunal (EAT) held that an Employment Tribunal (ET) is not compelled to rely on a list of issues that wrongly categorises the claim to be heard.
The Claimant was employed as an assistant management accountant. In an email she alleged that the Respondent subjected her to a detriment by asking her to work the year-end hours proposed as they were:
- detrimental to her health and safety; and
- in breach of the Working Time Regulations 1998 (WTR).
Following the email, the Claimant received an offer to terminate her employment in return for a payment of £10,000. She then lodged a claim with the ET pleading both of the above matters as protected disclosures.
An agreed list of issues was prepared at the outset of the hearing but categorised the WTR allegation as a working time detriment claim rather than detriment on the ground of making a protected disclosure. The EAT held that the ET failed to consider the substance of the claim.
The EAT relied on the Court of Appeal case of Parekh v London Borough of Brent  which made clear that an ET is not bound by the list of issues agreed and the core duty of the court is to hear and determine the case in accordance with the law and evidence. The claim was remitted to the same ET to decide whether the email contained a protected disclosure of a likely breach of the WTR.
This decision is a reminder that an agreed list of issues is not set in stone. If a list of issues is wrongly categorised then it is the duty of the ET to determine the case in accordance with the law and evidence.
Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries. www.dentons.com.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.