Employment Law Advocates

In the case of Swallow Security Services v Millicent, it was unsurprisingly found that a tribunal has a duty to consider contributory fault of its own motion when it has not been pleaded and has not been raised in submissions by an unrepresented party. This is consistent with the approach to many other areas of unfair dismissal including procedural fairness, Polkey reductions and statutory uplifts. What is more controversial is that the Employment Appeal Tribunal distinguished the case of Mensah v East Herts NHS Trust in which the Court of Appeal held that there was no duty to consider a claim of discrimination which was pleaded but was not raised at the hearing.

It is easy the understand the difference between the two cases with regard to the overriding objective. In unfair dismissal cases, the issues are nearly always the same and parties should be able to anticipate them without any warning. Therefore, the duty of a tribunal to assist unrepresented parties does not conflict with its general duty to do justice. On the other hand, discrimination is more complicated and it would be difficult for a tribunal to be fair to an unrepresented party while also being fair to the other side. While this logic is compelling, it does suggest that the tribunal system has failed in its aim of providing access to justice, at least in respect of discrimination.