The Claimant brought proceedings against the Respondent, alleging that she had been unfairly dismissed, including constructive dismissal, and that she was discriminated against on the grounds of pregnancy or maternity and sex. The Respondent defended the claims on their merits, asserting that a dismissal letter could not be relied on to support the Claimant's case that the Respondent was in fundamental breach of contract, because it was rendered inadmissible by section 111A ERA. On this point, the ET held that section 111A ERA applied to the pre-termination negotiation between the parties evidenced by and following the Respondent's dismissal letter, but that the section was of no relevance to a claim of discrimination. The Claimant appealed on the ground that the ET erred by failing to consider whether factors were present under section 111A(3) and/or (4) ERA.

The EAT held that it was incumbent on the ET proactively to seek clarification as to what the precise live issues were in relation to section 111A ERA that had to be decided. Accordingly, the matter would be remitted to the ET for fresh consideration of the section 111A issues.