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 [2012] 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.

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