Act: Party

Alt: Hardman, Advocate; Pinsent Masons

1 March 2012

[1] We accept that a new issue may arise during an Employment Tribunal hearing without the need for the tribunal to offer a party litigant an opportunity to adjourn to consider that new issue and its implications. However, it is always a question of fact and degree. In this particular case, we consider that Mr Francis has a valid complaint that a fundamental new issue, namely whether Mr Francis was dismissed or whether he resigned, was introduced into the proceedings despite the clear terms of Forms ET1 and ET3 and, despite an objection from Mr Francis, without requiring a motion to amend from the respondents. Mr Francis has a further valid complaint, namely that he was not asked if he required an adjournment to consider his position in the light of the new issue and, in particular, to consider, first, whether and how to oppose the introduction of the new issue and/or any amendment; secondly, whether it was necessary to carry out some further legal research; thirdly, whether in the light of the new issue it was necessary to obtain legal advice; and, fourthly, what submissions to make on the question of dismissal or resignation. On the contrary, the hearing continued (with the new focus and without any offer of an adjournment) to a final conclusion when the case was decided not on the basis of dismissal but on the basis of the new issue, namely resignation.

[2] We shall therefore quash the Employment Tribunal decision and remit the case to a differently constituted tribunal to proceed as accords.