The Issue of The Issues

Based on her extensive experience of lengthy Employment Tribunal litigation, Rachael offers insights and tips into preparing the list of issues, perhaps the most important document in a complex case.

The Issue of The Issues

Rachael routinely represents parties in complex, multi-week litigation in the Employment Tribunal (‘ET’).  Such claims tend to involve discrimination and whistleblowing claims covering events spanning years, and presented via lengthy pleadings.  Rachael is thus familiar with the challenges that come from prolix pleadings, and the need to formulate a clear list of issues.  In this article, she offers her insights and practical tips on achieving a useful and effective List of Issues.

The importance of the list of issues

A list of issues is, in basic terms, the list of legal questions that the ET will have to decide.  A list of issues should be helpful and comprehensive so that it can be used as a checklist of all the relevant matters, so everyone knows what is in dispute.  Indeed, the tribunal does not have to consider every pleaded claim where there is an agreed list of issues, and it is commonplace for the pleading to contain more allegations than those pursued at the final hearing (Horlorku v Liverpool City Council UKEAT/0020/15).

The list of issues is thus vital to all parts of case preparation.  A list of issues helps to ensure that relevant disclosure takes place, that practitioners can prepare effective witness statements, that counsel covers all the key points in cross-examination, and that the ET decides the relevant points when they adjudicate.

The list of issues is different to the pleadings.  The pleadings often contain background information that do not ultimately form part of the dispute.  Such background matters can be highly relevant to the context – and the potential to draw adverse inferences – and can still be addressed in witness statements.  However, the list of issues should be a precise list of the legal complaints, setting out the relevant legal questions whilst succinctly incorporating key details such as what happened, dates of alleged events, and the names of people complained about.

When should a list of issues be prepared?

Prior to a case management conference, the parties should complete an Agenda form.   This asks: [w]hat issues or questions will the Tribunal need to decide at the final hearing of the claim? The expectation is that only legally represented parties will fill this out and that the Judge will finalise the list of issues at the preliminary hearing.

Ideally, a list of issues should be prepared in advance of the preliminary hearing and provided to the ET alongside the Agenda.  The list of issues should be agreed as far as possible with the other side.  This can be tricky with litigants in person who might not understand what the list of issues represents, although I would still suggest providing a copy to them so that it can be discussed at the preliminary hearing.

As noted by HHJ Tayler in Liverpool Heart and Chest Hospital NHS Foundation Trust v Dr Michael Poullis [2022] EAT 9, there is an expectation on parties to work cooperatively in accordance with the overriding objective (see paragraph 8).  Where points are unclear and require more information, parties can therefore attempt to cooperate to achieve this prior to the preliminary hearing.   Where such efforts are not fruitful, this can be highlighted on the draft list of issues, for example and discussed at the preliminary hearing.

Where pleadings are complex and lengthy, in my view it can be helpful to cross-refer the list of issues to the relevant paragraph of the pleading.  This gives all users peace of mind in knowing that the issue has been pleaded.  In this way, the list of issues can be presented more succinctly, with the potential to cross-refer to the pleading for greater detail if required.  Alternatively (and just as importantly) this exercise highlights if the point has not been pleaded.  If there is a dispute as to whether an issue has been pleaded, and this has been highlighted already, then it is more likely that an application to amend can be dealt with at that first preliminary hearing.

Although the Agenda indicates that the Judge will finalise the list of issues, with the expectation being that this takes place at the first preliminary hearing, this might not happen within the time allowed, especially in cases involving unrepresented parties.  Depending on the case, finalising a list of issues can be extremely drawn out, so preparing as far as possible in advance of the preliminary hearing by delineating an understanding of the issues can save a lot of time and might avoid the cost of a further preliminary hearing.

It should be noted that the Court of Appeal has encouraged tribunals to be helpful to litigants in person in presenting their case.   Despite a list of issues having been drawn up between the parties, this may result in the Employment Judge still checking which claims are pursued and what is no longer being pursued (Mensah v East Hertfordshire NHS Trust [1998] IRLR 531).  Equally, just because the parties might have agreed the list of issues, this does not mean that the tribunal will accept it uncritically, especially where a litigant in person is involved (Price v Surrey County Council and another UKEAT/0450/10).

There are a practical few points to note:

• The box afforded on the Agenda is inadequate space to present a list of issues of any depth. I suggest attaching a properly drawn up list of issues instead in a Word document.
• I often see (even legally represented) parties put bullet points of the heads of claim in this section on the Agenda, such as “unfair dismissal”, “race discrimination” etc rather than grapple with what the issues are in advance of the hearing. The heads of claim are not the issues, and this will not be helpful to the Employment Judge at a preliminary hearing.
• Although drawing up the list of issues can be time intensive, in my view it is usually a worthwhile investment, as it might avoid further hearings and associated costs, and furthers the overriding objective more generally.
• In my experience Employment Judges are grateful to parties who put in the work to draw up a list of issues; after all, it should make the Judge’s life a lot easier! The goodwill created might result in other requests that are made at a preliminary hearing being viewed more favourably.

Determination of the list of issues at the Preliminary Hearing and thereafter

As mentioned above, at the preliminary hearing the list of issues will be discussed and hopefully finalised.

However, as noted above, this is not always possible.  I have experience of long and complex claims, presented by litigants in person, that have been so poorly pleaded that it has not been possible to volunteer a list of issues for consideration.  In such cases, the preliminary hearing can become taken up entirely with trying to understand the claims and put them into a legal framework.

My advice in these matters is to be vigilant and check the matters have been pleaded before they enter the list of issues and are not attempts to expand the claim for which an application to amend should be made.   In my experience, such cases often lead to further preliminary hearings to finalise the issues and deal with amendment applications, which obviously adds cost and delay.

Nonetheless, parties should always be prepared for a Judge to want to finalise the list of issues at the preliminary hearing itself.  Indeed, HHJ Tayler has stated obiter that a preliminary hearing which ends with a party being sent away to provide further information should be seen as “a failure”, since “it almost always begins a process of expansion of the pleaded case” (Liverpool Heart and Chest Hospital NHS Foundation Trust v Dr Michael Poullis [2022] EAT 9 at paragraph 8).

Excessive claims

Discrimination and whistleblowing claims often involve pleadings that are extremely lengthy and cover a long history.  Such pleadings might result in so many issues that the list of issues becomes unwieldy, the best points can get lost, and the resulting final hearing is longer and more costly than if the parties took a more robust approach.  My advice is to stick to the strongest claims in the list of issues.  As stated by HHJ Tayler in Carozzi v University of Hertfordshire (1) Lucas (2) [2024] EAT 169:

It is regrettable that in many claims the core issues become obscured because so many subsidiary allegations are made. It is often best to focus on the strongest points, If the strongest complaints fail, it is unlikely that the less promising will succeed. Even in claims of discrimination, where it generally is important to consider overall treatment, it is important to concentrate on the most significant events (paragraph 4).

In cases with a large number of issues, parties should also cooperate to try to reduce the dispute as far as possible.  Parties might think creatively as to how this is done.  Indeed, in Hendricks v Commissioner of Police of the Metropolis [2002] EWCA Civ 1686, the Court of Appeal stated:

Before the applications proceed to a substantive hearing the parties should attempt to agree a list of issues and to formulate proposals about ways and means of reducing the area of dispute, the number of witnesses and the volume of documents. Attempts must be made by all concerned to keep the discrimination proceedings within reasonable bounds by concentrating on the most serious and the more recent allegations.  The parties’ representatives should consult with one another about their proposals before requesting another directions hearing before the chairman. It will be for him to decide how the matter should proceed, if it is impossible to reach a sensible agreement.

Despite this guidance to take a more focussed approach, the ET has no power to order a claimant to limit the number of claims to be considered at the final hearing (McKinson v Hackney Community College and others UKEAT/0237/11), nor to limit the length of their ET1 (Fairbank v Care Management Group UKEAT 0139/12).

Whilst a tribunal might order a claimant to consider a sample of claims to be considered first, this power is may only be superficially attractive.  Splitting allegations might not in fact save time or cost but rather lead to separate hearings that add time and cost.  Further, discrimination claims tend to involve seeing the entire picture rather than discrete allegations (Tarn v Hughes UKEAT/0064/18).

Sticking to the list of issues…or not

A list of issues should set out all of the legal complaints.  Parties should raise all the issues at the ET (and not on appeal).

It is also necessary for the tribunal to stick to the list of issues when making its decision and not try to match a new issue to what appears to be the closest fit on the list of issues.  In Barts Health Trust v Kensington-Oloye UKEAT/0137/14, the tribunal was held to be in error for deciding a new issue that was not on the list of issues and trying to make it fit under a different issue.

Nonetheless, there is guidance from the higher courts that there should be some flexibility.  In Parekh v London Borough of Brent [2012] EWCA Civ 1630, the Court of Appeal emphasised that tribunals “are not required to stick slavishly to the list of issues agreed where to do so would impair the discharge of its core duty to hear and determine the case in accordance with the law and the evidence.”

Indeed, a tribunal should depart from an agreed list of issues where a failure to do so would prevent it determining the case in accordance with the law and evidence (Saha v Capita Plc [2018] 11 WLUK 528).

However, this departure from a list of issues should be kept within proper bounds.  Where issues have been missed off, case law suggests that only in the most obvious cases is the tribunal likely to consider it.  In Johnson v Manpower Direct (UK) Ltd UKEAT/0351/14 the EAT drew a distinction between obvious points that were an ‘essential ingredient’ of the claim and those that were not so obvious or significant.   In the former, it might be reasonable for the tribunal to offer assistance or take the point but in the latter, it would not be an error of law if the tribunal failed to do so.

In Mervyn v BW Controls Ltd [2020] ICR 1363 the Court of Appeal set out factors that might favour departing from the list of issues:

• Whether the list was agreed with legal representatives
• The stage of proceedings
• Delay or disruption to the hearing

Indeed, for unrepresented parties, the tribunal is likely to consider whether the list of issues reflects their pleaded claim.  If not, the tribunal may consider an amendment to the list of issues as being necessary in the interests of justice (Mervyn).

More recently, in Moustache v Chelsea and Westminster Hospital NHS Foundation Trust [2025] EWCA Civ 185, the Court of Appeal refused the claimant’s appeal that a claim, that was not on the agreed list of issues, had not been adjudicated upon.  This claim was also not obviously apparent on the pleadings.  In considering the case law, the Court of Appeal noted the importance of the pleadings, and that it is the statements of case that should form the basis of the list of issues.  It was emphasised that the list of issues should only be departed from in exceptional circumstances.  The claimant’s status as a litigant in person was not enough.

However, just because a point has been pleaded does not give a claimant the right to reintroduce claims at will, although cases resulted in different outcomes.  In Mensah (above), the claimant pleaded 2 aspects of discrimination but only included 1 of them in her list of issues.  The Court of Appeal held that the tribunal was not under a duty to hear every pleaded allegation unless it had been abandoned.  By contrast, in Z v Y [2024] EAT 63, the EAT held that a tribunal had erred when it did not consider a pleaded claim that was not on the list of issues.  The EAT took into account that the claim had been clearly pleaded, that the claimant had not been asked to clarify the claim, and she had not been asked if she had withdrawn the claim.

Conclusion

It is hoped that with careful consideration of the pleaded case and cooperation between the parties in advance of the first preliminary hearing, that a list of issues can be achieved that is approved by the tribunal.  Where this is not possible, parties should still cooperate to try to make inroads into understanding the issues and ultimately assist the tribunal exercise its function as efficiently as possible.