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Is an employment tribunal at a full hearing required to stick to the List of Issues decided at case management preliminary hearing?

No, held the Court of Appeal in Mervyn v BW Controls Ltd.

Ms Mervyn, who was not legally represented, claimed she had been dismissed, and insisted she had not resigned. The facts of her case, in the ET1 and in the documents, however, clearly gave rise to a case of constructive dismissal.

At the case management preliminary hearing, Ms Mervyn insisted she had not resigned and the issues were defined as involving 'ordinary' unfair dismissal. At the start of the full hearing, the employment judge asked if the issues were as set out in the CMD Order, and Ms Mervyn said they were, and so that was all the employment tribunal considered.

The Court of Appeal stated that in a case where any employment lawyer would realise it was, in reality, a case of constructive dismissal, then the tribunal ought to have raised that and considered a constructive dismissal case in the alternative to actual dismissal. Sometimes, in that situation, an adjournment might be needed (which itself might be a factor in whether to amend the List of Issues) - but the duty of fairness to both parties required an employment tribunal to case manage actively and consider amending the List of Issues of its own volition.