An interesting procedural issue has arisen in the case of Dundee City Council v Malcolm UKEATS/0019/15/SM
The EAT dismissed appeals challenging a decision where a Claimant had been allowed to advance evidence relevant to compensation at a reconsideration hearing despite the Claimant not advancing the same evidence at the substantive hearing.
The Claimant worked as a Lab Technician for 16 years. Performance issues arose and she was offered and accepted a demotion. She subsequently resigned her employment in 2002, claiming constructive unfair dismissal and sexual harassment, which caused her to suffer a nervous breakdown. The tribunal determined that the Respondent was liable and that the Claimant was entitled to compensation for psychiatric injury, injury to feelings and loss of earnings.
The problems arose in working out that compensation. A first decision as to remedy was successfully appealed to the EAT, which concluded that she was entitled to wage loss for the period from 2002 to 2007. The matter was remitted to the Tribunal to determine "what work the Claimant would have done… had she been fit; what wages she would have made; and what loss she sustained". The Tribunal declined to accept the Claimant's case that she would have worked as a Lab Technician throughout this period because she failed to produce sufficient evidence.
The Claimant argued no other case before the Tribunal.
Noting that she had never previously been out of work and that she had for five years held a part-time, supplementary role at Asda, the Tribunal ITSELF concluded that, in the absence of anything else, she would have taken a full-time role at Asda after a period of 3 years and assessed loss of earnings on that basis.
The Respondent sought a reconsideration, on the ground that it had no chance to meet the "full-time Asda" case in evidence or submissions since the Claimant had never specifically advanced it.
The Tribunal granted the reconsideration, at which it confirmed its earlier decision, but in doing so allowed the Claimant to advance evidence as to a "full-time Asda" case, which she had not advanced previously.
The Respondent appealed the initial decision on the basis that the Tribunal had impermissibly made a case for the Claimant she had not made for herself, that the decision was speculative and that there was insufficient proof of loss. It further appealed the decision to hold a reconsideration because by doing so the Claimant was allowed to advance evidence not previously advanced and that she therefore was given a "second bite of the cherry". The Claimant appealed on the ground that the Tribunal had imposed too high a burden of proof, requiring evidence of probabilities rather than of chances.
The EAT dismissed all three appeals. Perhaps the important one was set out in para. 12 of the Judgment
'By a Notice of Appeal of 17 February 2015, Dundee argued that the Tribunal erred in law in awarding the Claimant compensation on the basis of the likelihood of her being employed full-time by ASDA, since that compensation was not claimed by the Claimant, there was no evidence that ASDA had a vacancy, or that the Claimant would actually have sought such a position, and the award was expressly recognised by the Tribunal itself to be speculative. Since the Respondent had not been invited to argue whether the Claimant would have enjoyed such a job with ASDA it had been deprived of any opportunity of testing the hypothesis upon which the Tribunal based its decision or of leading any contrary evidence. The Tribunal was making a case of its own motion which the Claimant had not made.'
The EAT reminded itself that a tribunal can not 'step into a litigants' shoes':
'18. A second principle is that it is not for a tribunal to make a case for a litigant. However much a tribunal feels that a litigant is not making the best case that litigant could, given the facts as they appear to the tribunal, it cannot step into the shoes of the litigant and make for itself any case which it appears could have been advanced successfully in the light of that material. To do so would be to enter the arena. It would be to abandon impartiality. It would run counter to the very essence of the accusatorial procedure. Although litigants who are not lawyers might not know what precise legal label might categorise their cases, they will know what it is that they are complaining about. The line between making a case which is not being advanced by a party, on the one hand, and helping that party to articulate clearly that which they are complaining about on the other may be fine, but it is critical. A tribunal's duty to be fair to both sides means it cannot enter the contest on behalf of either one. It must listen to the cases made for each, and must not substitute a case of its own. As Lord Justice Mummery said at paragraph 26 in MacNicol v Balfour Beatty Maintenance Ltd  EWCA Civ 1074 (a case in which what was in issue was whether the Claimant had suffered an impairment which could begin to satisfy the statutory definition of disability) the role of the tribunal'.
and at 19:
'......in doing so is to permit further evidence to be led by a party which could have been led earlier, and which would not be admitted if the rule in Ladd v Marshall (the principles of which are expressed above) were applied. This principle is clear from a number of authorities. In Flint v Eastern Electricity Board 1975 ICR 395 Philips J declared that it was in the public interest that proceedings should be as final as possible, and that it should only be in unusual cases that an applicant before a tribunal was able to have a second bite at the cherry: thus, where information which a party wished to put before a tribunal at a second hearing had been in both the applicant's possession and in his mind during the whole time of the first hearing a review of the decision reached at that hearing (as reconsideration was then termed) should not be held. The same point was emphasised in Mensah v East Hertfordshire NHS Trust  IRLR 531, CA in which at paragraph 18 Peter Gibson LJ cited with approval the words of Sir Hugh Griffiths giving the judgment of the court in Craig v British Railways (Scottish Region)  8 ITR 636, 637:'
Although the Claimant had not advanced her claim on a "full-time Asda" basis, the Tribunal was entitled to investigate the matter remitted to it and there was sufficient evidence for the Tribunal to assess loss of earnings as it did.
It was concluded that there was an exception to the rule (the judgment itself should be read as this is a brief summary)
'34. Thus it must follow that where a complaint is pleaded in very general terms but only some aspects of it are advanced in detail, then although a Tribunal has no duty to enquire as to other aspects of the same general complaint which have not been the subject of specific evidence or submission, it may do so. It is not in error of law if it does. All the more must this be the case where the matter is not merely one of pleading but is the very issue remitted by the Appeal Tribunal.
35. Accordingly, in my view, the Tribunal was entitled to ask itself here what the evidence showed as to the issue it had to resolve – as to the likely loss of earnings, assessed in accord with the principles identified above, neither over nor under-compensating. In short, I reject the argument that once the Claimant failed to bring forward sufficient evidence to show that she had some realistic chance of being appointed a Lab Technician at the University her future loss of earnings was necessarily to be assessed at nil (part-time earnings at Asda aside).