The tribunal's case management powers, and the fair hearing requirements which constrain them. Drysdale v Department of Transport; Mervyn v BW Controls.
Redundancy; unfair dismissal; issues taken of the tribunal own motion. HHJ Peter Clark held that selection, consultation and the search for alternative employment are so fundamental to a redundancy dismissal that, absent agreement to the contrary between the parties, they are in issue in every such unfair dismissal claim, whether or not the parties raise them, and the employer is expected to lead evidence on each. The foundation of the matter of course line of authority, confined in Whitaker v White Rose Academies Trust and Russell Cherrington v University of Derby to the ordinary application of a single statutory test the tribunal is already applying. [Summary checked against a practitioner text, not the judgment.]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Perversity appeals; the threshold. Mummery LJ held that an appeal on the ground that the employment tribunal's decision was perverse ought only to succeed where an overwhelming case is made out that the tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached. The appellate body has not heard the evidence and must not retry the case; a strong disagreement with findings of fact is not perversity. Applied on the perversity ground in the interim relief appeal in Duffy v BXTR 3 Ltd t/a House of Gods. [Summary not yet checked against the judgment.]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Procedure; list of issues. A list of issues is a case-management tool, not a pleading; a tribunal need not adhere slavishly to an agreed list where doing so would impair its core duty to determine the case on the law and the evidence.
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Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Tribunal procedure; assistance to litigants. The Court of Appeal set out six principles governing the assistance a tribunal should give to a litigant in the formulation and presentation of a case. What is appropriate depends on the circumstances, is constrained by the requirement of impartiality, and is a matter for the judgment of the tribunal hearing the case. A wide margin of appreciation applies and an appellate court will not normally interfere.
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Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Tribunal procedure; unpleaded issues. The Court of Appeal held that it shouted out from the claimant particulars of claim that she was alleging constructive dismissal, even though this did not appear in the agreed list of issues, and the ET should have addressed it.
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Procedure; undefended claims; rule 21 ET Rules 2013. An employment judge gave judgment on an employer's contract claim because the claimant had entered no response, without hearing evidence [12]. HHJ Auerbach held that rule 21 neither requires nor permits judgment simply because a claim is undefended: the judge must be satisfied, treating what the claiming party says as undisputed, that the factual elements necessary to make good the claim in law are made out; otherwise there must be a hearing [26]. The same applies where the case reaches a full hearing with no rule 21(2) decision [31]. A request to participate under rule 21(3) must be given substantive consideration and decided judicially [40]. It was wrong to give no consideration to whether there was a proper basis for judgment [43]. It was a further error not to consider whether the claimant should be allowed to participate [46]. The whole judgment was quashed and both claims remitted [56].
Tribunal procedure; addition of respondents and amendment to scope of claim. Where a claimant seeks both to amend the scope of the claim (e.g. by adding new factual allegations) and to add a further respondent, the tribunal must approach the application in two stages: (1) determine whether to permit amendment of the scope of the claim; and (2) only then, on the determined scope, decide whether to add the proposed respondent. The tribunal had erred by reaching a single composite decision on amendment and joinder without first considering the scope of the substantive complaint as amended.
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Procedure; vulnerable parties; adjustments to the tribunal's own process. Although judicial functions are exempt from the Equality Act 2010, a duty to adjust tribunal procedure for a disabled party may derive from the overriding objective, article 6 ECHR, the common law and article 13 of the UN Convention on the Rights of Persons with Disabilities, as the Presidential Guidance on Vulnerable Parties and Witnesses recognises (at [36]). Whether a step is an appropriate adjustment is a matter of judicial discretion; there is no one-size-fits-all answer, and in some cases a decision without an in-person hearing may be apt (at [37]). A refusal should be reasoned, but the right to a fair hearing applies to both parties (at [38]). On the facts, appeals against the dismissal of claims under an unless order and the refusal of reconsideration after a later autism diagnosis were dismissed: the ET had not erred in deciding the applications on the papers.
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Procedure; medical evidence; postponement. The EAT upheld a tribunal's refusal to postpone the rest of a hearing after the claimant had completed her evidence [6], [74]. A postponement decision can be challenged only on perversity or Wednesbury grounds [32]. The onus is on the party seeking a postponement for ill health to show that they are not well enough to attend [50]. Where medical evidence directly addresses the proceedings and the application, the tribunal must engage with it and consider it with care; reservations about it need a proper reasoned basis, but the tribunal is not bound to defer uncritically to the clinician [68]. Even clear medical evidence of unfitness does not automatically entitle a party to a postponement [62]. The judge was entitled to conclude that nothing in the GP's letter indicated that a resumed hearing would not have the same effect [72]. The challenge to the dismissal of the s.15 EqA 2010 complaint failed [95]; appeal dismissed [96].
Tribunal procedure; unpleaded issues; lists of issues. Warby LJ set out the modern approach to when an ET must identify and determine an issue not raised by the parties: proceedings are adversarial, pleadings matter, the ET's role is arbitral rather than inquisitorial, and there is no general duty to prompt a party to expand their case [37]. The starting point is what claims emerge from an objective analysis of the statements of case. Failing to identify and address those is a breach of the tribunal's core duty and an error of law; failing to take a claim that does not so emerge is an error of law only in the rare or exceptional circumstances identified in Drysdale [39]. A list of issues is a case management tool, not a pleading, and a tribunal will usually be entitled to confine itself to it; it may depart from the list where a pleaded claim was omitted without abandonment or where fairness makes it essential [40].
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Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Practice; AI and citation of authorities. The Divisional Court held that freely available generative AI tools are fundamentally unreliable for legal research as they can produce plausible but entirely fabricated citations ('hallucinations'). Lawyers bear a professional duty to verify all AI-generated output through authoritative sources (BAILII, National Archives, official law reports) before use. Those in leadership positions must implement practical measures ensuring compliance with AI-related professional obligations.
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Practice; AI and citation of authorities. Applying the Divisional Court guidance in Ayinde, HHJ Charman found that a solicitor's firm had submitted two fictitious AI-generated case citations. The firm's administrative staff had used a legal software's built-in AI research feature without verification. The judge held the conduct was improper, unreasonable and negligent, ordered wasted costs against the firm, and struck out the claim with indemnity costs. [Summary not yet checked against the judgment.]
Unfair dismissal; Convention rights; points taken of the tribunal own motion. Cavanagh J held that an ET is not required to consider Art. 10 ECHR of its own motion merely because a dismissal concerns speech: the Art. 10 issue did not shout out from a pleaded case whose thrust was procedural unfairness. There is no obligation to consider Convention Articles as a matter of course in unfair dismissal claims, nor any narrower obligation confined to speech cases; the matter of course categories remain limited to consultation and alternative employment in redundancy, the Burchell and Iceland Frozen Foods liability criteria, and the Norton Tool heads of loss. Leave to take the Art. 10 point for the first time on appeal was refused: Convention points attract no special indulgence and the point was not one of pure law.
“I am satisfied that no such obligation exists. … It would mean that ETs would have a positive duty to consider Convention Articles even in cases where, on any reasonable view, no Convention issues arise. That cannot possibly be right.”Cavanagh J, at [117]
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Tribunal procedure; matter of course issues. HHJ Auerbach held that the ET was not obliged to consider of its own motion whether the claimant was a worker under the extended definition in s.43K(1)(a) ERA 1996 where he had advanced his case on s.230(3) alone. The established matter of course categories are few and concern the ordinary application of a single statutory test; the EAT should be circumspect about extending them. Approved by Cavanagh J in Russell Cherrington v University of Derby.
Considered by Russell Cherrington v University of Derby [2026] EAT 107 (2026-07-27)
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.