Is an employment tribunal obliged to consider a claim brought by a litigant in person which, while present on the face of the ET1, appears to have been abandoned?
No, not on the facts of this case, held the EAT in Mervyn v BW Controls Limited.
The Claimant had ticked the box in her ET1 indicating a claim of unfair dismissal, "including constructive dismissal". The particulars in the ET1 set out what the EAT acknowledged might be seen as a paradigm case of constructive dismissal, in that the Claimant had walked out of her job after what she described as a build-up of stress. However, the Claimant maintained throughout the proceedings (in correspondence with the tribunal, at a telephone Preliminary Hearing, during her evidence, and in her closing submissions) that she had not resigned but had been "actually dismissed". That position was recorded in a list of issues following the telephone PH, which was confirmed at the beginning of the trial.
The tribunal limited its consideration to a claim for ordinary unfair dismissal, rather than constructive dismissal, noting the issues for determination as recorded. It subsequently went on to find that the Claimant had not been dismissed but had resigned, and dismissed her claim.
On appeal, the Claimant argued that the tribunal ought to have explored her alternative claim of constructive dismissal, which she had never formally abandoned. The EAT disagreed, noting that to do this "the ET would in effect have had to ask the Claimant to retract from a fundamental factual plank of her claim". Although the Claimant was a litigant in person, this would have involved impermissibly descending into the arena. The Tribunal could not be criticised for taking the approach that it did, and the appeal was dismissed.
Thanks to Kieran Wilson of Littleton Chambers for preparing this case summary.
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