Mon, 12 Dec 2011
By Richard Adkinson
While the case law progresses at a pace, sometimes more mundane procedural matters can get overlooked. Recent cases from the Employment Appeals Tribunal have highlighted one of these things: the list of issues.
Often ordered by tribunals at the Case Management Discussion, these lists of issues, if drafted properly, can not only help narrow the issues but can also provide a framework for the later preparation of cross-examination and closing submissions. They can also help foresee timetabling issues as one realises the extent of what needs to be covered.
A list of issues recently came in for criticism before the EAT in the case of Price v Surrey County Council (27 October 2011) UKEAT/0450/10/SM (presided over by the Senior President of the Tribunals, Carnworth LJ).
The case concerned constructive dismissal and whistleblowing. The lay represented claimant won on the issue of constructive dismissal but lost on the issue of whistleblowing. The EAT upheld the tribunal’s decisions.
Echoing recent comments of the EAT President in Wilcox v Birmingham CAB Services Ltd  UKEAT/ 0293/10 2306, Carnworth LJ said:
“ Although [the list of issues was] ‘agreed after discussion with the parties’, and apparently approved by the judge, we observe that it was not a very helpful framework for deciding the case. Even where lists of issues have been agreed between the parties, they should not be accepted uncritically by employment judges at the case management stage. They have their own duty to ensure that the case is clearly and efficiently presented. Equally the tribunal which hears the case is not required slavishly to follow the list presented to it.”
The tribunal then appended the list of issues to the judgment not least as “it may serve for the future as a useful illustration of how not to do the exercise.”
From Carnworth LJ’s criticism of the list , it is clear that a list of issues should be ideally structured in this way:
(a) It should set out the central issues to be decided;
(b) It should then separately deal with the key factual allegations to be decided.
Of course, particularly with litigants in person or those represented by unqualified representatives, creating the list can be a difficult exercise if the other side find it difficult to distinguish between the fundamental and the peripheral. Further, sometimes there is a genuine dispute about whether an issue is actually relevant. In those cases the responsibility remains with the Tribunal to deal with the issues which the parties are putting before it, and to identify what they are, as was recently stated by Langstaff J in Land Rover v Short UKEAT/0496/10/RN.