The Claimant had his claims dismissed at the ET and he appealed, arguing that the ET had erred in departing from a list of issues previously agreed at an earlier preliminary hearing by both parties, by exceeding its powers under rule 29 of the Employment Tribunals Rules of Procedure. The ET had failed to explain why such variation was permissible, by reference to one of the exceptions as set out in Serco Ltd v Wells [2016] ICR 768. The ET was not entitled to vary the list of issues simply because it disagreed with it, without any reference to the earlier preliminary hearing.

The EAT allowed the appeal. The ET erred in misunderstanding the scope of the Claimant’s claims, in circumstances where an additional document had been filed with the ET’s offices at the same time as the claim form and had been referred to in the claim form, but had not been served on the Respondent by the ET’s office. Had the ET had its attention drawn to that additional document or had gone through an analysis of why the list of issues had been formulated as it had been at the earlier preliminary hearing, that misunderstanding may have been addressed. As it was, the ET erred in narrowing its consideration of the issues and omitted to consider claims, the scope of which had been previously agreed by both parties.