The Employment Appeal Tribunal (Underhill P sitting with members) has provided useful guidance in Working Men’s Club and Institute Union Limited v Balls (2011) UKEAT/0119/11/LA on the appropriateness of a Claimant in a claim of unfair dismissal raising new points that have not been specifically pleaded in the claim form.
Most of the points contained within the Judgment are unexceptional and confined to the specific facts of the case, the key point being whether the EAT considered the reasoning of the Tribunal to be adequate.
However, at paragraph 41, Underhill P makes an interesting point which can be summarised as follows:
- The submission was made that a number of criticisms of the Respondent did not form part of the Claimant’s case, either in his ET 1, or his witness statement.
- The EAT noted that it was not unusual for points to emerge in the course of cross examination.
- If the points raise a “whole new case” they may be inadmissible
- It will not normally be difficult for representatives to deal with ‘new points’ which are against the background of primary facts which are already before the Tribunal.
- No specific prejudice was identified to the Respondent in the reliance by the Tribunal on these criticisms. Therefore, the criticisms were valid. The Respondent could reasonably expect it’s witnesses to deal with criticisms of the process.
It is important to understand the distinction between claims of unfair dismissal and discrimination. In unfair dismissal, the Tribunal will be assessing reasonableness for the purposes of s.98(4) Employment Rights Act 1996. It is not unreasonable to describe the application of this section as broad. For example in Langston v Cranfield University  IRLR 172 HHJ Peter Clark held in a redundancy case it was incumbent upon a Tribunal in the absence of a specific concession to consider the issues of selection, consultation and suitable alternative work, regardless of whether the points had been raised, such was their importance. In discrimination cases, whilst a wide range of potential circumstances can give rise to discrimination, particular weight is placed on the need to find discrimination on the basis of the pleaded case only (c.f.: Chapman v Simon  IRLR 124), with discrimination being restrictively confined to the specific circumstances advanced by the Claimant.