Where a legitimate misunderstanding had arisen at the final hearing in an employment tribunal concerning the scope of an agreed list of issues, the tribunal should have invited submissions from the parties, including an application for adjournment if appropriate. Its failure to do so had amounted to a material procedural irregularity.

 

The appellant employer (L) appealed against an employment tribunal's decision that it had unfairly dismissed the respondent employee (S) and discriminated against him by failing to make a reasonable adjustment for his disability.

 

S suffered from persistent upper extremity symptoms and became unable to work on L's production line. He was dismissed after L failed to find him an alternative position. He had suggested alternative roles, but those roles were occupied by employees who were unwilling to move, and L refused to "bump" them into another position because of the terms of a collective agreement. A list of issues had been agreed between the parties' representatives prior to the tribunal hearing. The list did not include consideration of whether it would have been a reasonable adjustment to require other employees to move so that S could take over their role. S's counsel cross-examined L's witnesses upon whether they had considered "bumping". L objected, but the tribunal failed to rule upon whether that was one of the issues to be determined. In its final judgment, the tribunal found that the list of issues was broadly drafted and encompassed bumping. It concluded that L's refusal to bump other employees was a breach of its duty to make a reasonable adjustment.

 

L submitted that the tribunal should not have considered bumping because it was not included on the list of issues.

 

HELD: (1) It was part of the requirements of natural justice that a party should know the case they had to meet. If that was hidden from a party, however inadvertently, then that party was disadvantaged in the process of securing justice. It was for that reason, though in a different context, that decisions such as that in Chapman v Simon [1994] I.R.L.R. 124 had been reached, Chapman applied. Tribunals would normally be considerably assisted by an agreed list of issues. It would be rare, where parties were represented by professional advocates, for there to be room for legitimate misunderstanding as to what the list of issues covered. In the instant case, although the tribunal was entitled to take the view that the issues were drafted widely enough to encompass the bumping question, the wording of the list did not make it crystal clear. When it became plain to the tribunal that the parties disagreed on the scope of the issues, it was obliged to grasp the nettle. It could not legitimately wait until it had retired and reached a decision before inviting submissions on the matter, particularly in circumstances where it knew that if S's view of the list of issues prevailed, then L would wish to call further evidence. It should have invited L to make further submissions, including inviting it to apply for an adjournment, which L had indicated might be required. It was unfair to leave hanging a critical difference in the approach of the parties, upon which the fair resolution of the case might depend. There had been a material procedural irregularity in the tribunal's approach, amounting to an error of law (see paras 51, 56-61 of judgment). (2) In the case of a large employer, where the disadvantage which disability might cause was dismissal, it was not necessarily unreasonable to ask another employee to move to another role within the undertaking. The assessment of reasonableness had to depend upon all the circumstances and each case was fact-specific. L had subsequently produced material which might make a difference to the tribunal's decision. Therefore it was not possible to say that the decision which the tribunal had reached was plainly and obviously correct, despite the procedural irregularity which had occurred. The unfair dismissal complaint stood or fell by reference to the reasonable adjustment point. Therefore that also fell for redetermination and the case was remitted to the same tribunal (paras 68, 70, 73, 77).

Appeal allowed

 

Counsel:
For the appellant: Ijeoma Omambala
For the respondent: Robin White