In Land Rover v Short (2011) UKEAT/0496/10/RN Langstaff J sitting with members has confirmed that whilst an Employment Tribunal will be assisted by an agreed list of issues, even where parties are professionally represented, the responsibility for identifying the issues remains with the Employment Tribunal. (Paras 56 & 57).
The underlying logic behind this principle is sound. The Tribunal is the independent arbiter of the dispute, it is ultimately charged with determining the case according to a correct application of the law.
However, there is a real difficulty in the practical application of this point. Parties are entitled to rely upon the position adopted by the opposing side. Where there are ‘shifting sands’ it can be a constant source of frustration. In the Land Rover case, there was an issue of interpretation over the agreed list of issues, this is distinct from the wider point that it would appear that the Tribunal is entitled to go beyond an agreed list of issues, subject to the issue of jurisdiction, which is one application of paragraphs 56 & 57.
Update: The Judgment of Carnwarth LJ referred to by Langstaff J has also been handed down today. See: Price v Surrey County Council & The Governing Body of Wood Street School (2011)UKEAT 0450/10