Worker’s claim broke golden rule of litigation

Posted: 28th March 2019

Security OfficerOne of the golden rules of litigation is that issues to be resolved must be established at the outset. That did not happen in an employment case in which a worker who claimed to be a victim of disability discrimination shifted his ground at a late stage.

When lodging his complaint with an Employment Tribunal (ET), the security guard stated that he was disabled due to a heart condition, atrial fibrillation. He claimed that he had been overlooked for promotion due to that disability and that his employer had failed to make reasonable adjustments in not providing him with sufficient work breaks.

At a preliminary hearing, his claim that he was disabled by reason of his heart condition was rejected. However, he succeeded in an alternative argument that he was disabled due to suffering from depression. He had not sought to amend his claim to include that allegation, but the ET permitted him to argue the point despite the employer’s objections.

In upholding the employer’s challenge to that decision, the Employment Appeal Tribunal (EAT) found that the ET was plainly wrong to treat the issue before it as being whether the man suffered from the mental impairment of depression. That argument had been sprung upon the employer very shortly before the hearing.

There had been no attempt to change the list of issues that were to be resolved and the reasonable adjustments contended for related solely to atrial fibrillation. That was the case that the employer had prepared itself to meet and the ET’s decision had thrown the proceedings into disarray. There being nothing of substance left in the proceedings, the EAT dismissed the man’s claim.