The List of Issues

The List of Issues is a key document which is very important in any claim in the Employment Tribunal.

This is because it sets out the questions which the Employment Tribunal Judge will be asking in your claim, and which need to be answered in order to make a final decision in your case. This includes key questions about both “liability”, i.e. was there any breach of the law, as well as “remedy”, i.e. how much your claim is worth (how much compensation you will get) if you are successful in proving liability.

It is therefore very important that you engage at an early stage with the process of agreeing (where possible) the List of Issues, and that you are happy with the final list.

Normally, the Tribunal will ask for both the Claimant and Respondent to comment on a draft List of Issues, before it is finalised, ahead of the final hearing of the claim.

However, whilst the List of Issues should be one document, it will not always be possible to agree on every issue listed and as long as you have made some reasonably efforts to agree the list with the Respondent, it is perfectly acceptable to highlight any parts that you ‘don’t agree with’.

As you will see below, the List of Issues needs to give particulars (i.e. details) of each of the instances of alleged breach of the law, or each alleged act of discrimination.

In a discrimination claim, this will need to include what type of discrimination is alleged, (e.g. direct or indirect, and which protected characteristic is involved), and the date of each of the alleged incident(s).

The Claimant should be able to provide the information needed for the List of Issues, including for example, what actions of the employer were less favourable treatment because of sex, and/or what provisions, criteria or practices were indirectly discriminatory and related to sex, indicating who was responsible for each act, where it took place, whether there were any witnesses to it, and who they were.

For more information on types of discrimination, you may wish to look at our detailed advice pages here.

The following is a sample list of the sort of issues an Employment Tribunal will have to decide, it is based on the case described in Precedent 1.

Underneath this we have also set out a basic List of Issues in an “ordinary” Unfair Dismissal claim.

Example List of Issues in Discrimination Claim

1. Whether the claimant was discriminated against on grounds of her pregnancy contrary to s18 of the Equality Act 2010: (i) in the remarks made by Mr Venables to her on 4th October 2016; (ii) by excluding her from the Group management meetings in October 2016; (iii) in her dismissal on 18th October 2016 and the rejection of her appeal on 22nd October 2016.
2. Whether Mr Venables’ remarks to the claimant on 4th October 2016 were unlawful harassment contrary to s26 of the Equality Act 2010.
3. Whether Mr Venables’ remarks to the claimant on 4th October 2016 were unlawful harassment contrary to s26 of the Equality Act 2010.
4. Whether the claimant’s dismissal was automatically unfair on grounds that she was dismissed for a reason related to her pregnancy contrary to s99 of the Employment Rights Act 1996 and reg 20 of the Maternity and Parental Leave etc Regulations 1999.
5. Whether the claimant was subjected to detriments short of dismissal for reasons related to her pregnancy contrary to s47C of the Employment Rights Act 1996 and reg 19 of the Maternity and Parental Leave etc Regulations 1999: (i) in the remarks made by Mr Venables to her on 4th October 2016; (ii) by excluding her from the Group management meetings in October 2016.
6. Whether the claimant’s dismissal was unfair under s98(4) of the Employment Rights Act 1996.
7. Whether the claimant is entitled to the balance of four weeks’ pay in lieu of notice.
8. Whether the claimant is entitled to a declaration and compensation under s93 of the Employment Rights Act 1996 in respect of a failure to give her written reasons for dismissal.

Example List of Issues in an Unfair Dismissal Claim

In an “ordinary” unfair dismissal claim, the List of Issues may be as follows:

• Was the Claimant dismissed? If so, on what date?
• What was the reason, or principle reason, for dismissal?
• If the reason was misconduct, did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant?

The Tribunal will usually decide, in particular, whether:

• There were reasonable grounds for that belief
• At the time the belief was formed the respondent had carried out a reasonable investigation;
• The respondent otherwise acted in a procedurally fair manner; and
• Dismissal was within the range of reasonable responses.
  
• On Remedy, the Tribunal will ask does the Claimant wish to be reinstated to their previous employment? OR Does the Claimant wish to be re- engaged to comparable employment or other suitable employment?
• Should the Tribunal order reinstatement? (The Tribunal will consider in particular whether reinstatement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just)
• Should the Tribunal order re-engagement? (The Tribunal will consider in particular whether re-engagement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just). What should the terms of the re-engagement order be?

If there is a compensatory award, how much should it be? The Tribunal will decide:

• What financial losses has the dismissal caused the claimant?
• Has the claimant taken reasonable steps to replace their lost earnings, for example, by looking for another job?
• If not, for what period of loss should the claimant be compensated?
• Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason? If so, by how much should the claimant’s compensation be reduced?

Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? Did the respondent or the claimant unreasonably fail to comply with it? If so, is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?

• If the claimant was unfairly dismissed, did she cause or contribute to dismissal by blameworthy conduct? If so, would it be just and equitable to reduce the claimant’s compensatory award? By what proportion?
• Does the statutory cap of the lower of fifty two weeks’ pay, or £105,707 (as at April 2023) apply?
• What basic award is payable to the claimant, if any?
• Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent?

This advice applies in England, Wales and Scotland. If you live in another part of the UK, the law may differ. Please call our helpline for more details. If you are in Northern Ireland you can visit the Labour Relations Agency or call their helpline Workplace Information Service on 03300 555 300.

If you have further questions and would like to contact our advice team please use our advice contact form below or call us.

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