Tribunals often direct the parties to agree a list of issues, but they don’t always explain what that means or how you should go about writing one.
A list of issues is a list of the questions that the tribunal will have to decide. That means it should take the form of a list of questions – not a list of statements. The point is not to make assertions about your case, but to define the things the two sides disagree about. Even people who disagree strongly ought to be able to agree what it is that they are arguing about.
A list of issues can be very short. Suppose you have been dismissed for being rude to your line-manager. Everyone agrees what you said, that this was the reason why you were dismissed, and that you were dismissed without notice. Your list of issues might look like this:
1. Did the Respondent follow the statutory procedures before dismissing the Claimant?
2. Was the decision to dismiss fair or unfair?
But your case may be much more complicated than that. Suppose you resigned after a period in which you had raised a number of complaints about overwork and the conditions in which you were working, and your employer had started a capability procedure. Your list of issues might look something like this:
1. Was the Claimant’s complaint of 11 November 2008 to Peter Waters a protected act for the purposes of section 43A of the Employment Rights Act?
2. Was the Claimant’s grievance of 13 November 2008 to Martine Palmer a protected act?
3. Did the Claimant’s statements about working conditions in the course of his grievance hearing on 26 November 2008 constitute a protected act?
4. Were the Claimant’s complaints about his working conditions the reason for the Respondent’s decision to commence the capability process on 3 December 2008?
5. Did the following, or any or all of them in combination, constitute a fundamental breach by the Respondent of the Claimant’s contract of employment:-
(i) the manner in which the Respondent conducted the grievance hearing on 26 November 2008;
(ii) the Respondent’s decision to start a capability process;
(iii) Martine Palmer’s remark to the Claimant immediately before the meeting of 10 December in which she said, ‘You’ve been nothing but trouble since we took you on. You should never have got through your probation.’
6. If the Respondent did commit a fundamental breach of the Claimant’s contract of employment, did the Claimant resign in response to it?
7. If the Claimant was constructively dismissed, was the reason for the dismissal a protected act?
If you propose this list of issues to the Respondent, they might object that they don’t accept that Martine said ‘You’ve been nothing but trouble..etc.’ If so, you don’t need to argue this out now: clearly it is something the tribunal is going to have to make a decision about. In other words, it is an ‘issue.’ So the sensible response is to agree to amend your list of issues to add the question ‘Did Martine Palmer say, ‘You’re nothing but trouble…etc.’?
It is important to make sure all your main points are included. For example, in a discrimination case, make sure you include everything that you say your employer did to you that was an act of discrimination. If there are various different ways in which you can put your complaint, make sure you include both or all – if for example, you say that your dismissal was unfair and it was an act of sex discrimination, make sure you put in both questions: ‘Was the dismissal unfair?’ and ‘Was the Claimant dismissed on grounds of her sex?’