C worked on the production track for R. He was disabled and became unable to perform the core functions of
his employment. R said that it was unable to identify an alternative position and dismissed C. C presented
claims of disability discrimination and unfair dismissal.
Although R identified a number of roles that C could perform R adopted the position, pursuant to an agreement
with the unions, that there would be no bumping. This meant that although there were roles within the
organization that C could perform, R was unable to place C in those roles. A list of issues was agreed between
the parties but it did not include the question of whether R could ignore the prohibition on bumping contained in
the collective agreement. During the course of the hearing R’s counsel objected to the issue of bumping being
raised, stating that the ET1 would need to be amended and that, if the amendment was permitted, R might need
to call further evidence. C’s counsel said that no amendment was needed. The ET did not rule on whether the
issue was in fact before them but, in its judgment, held that the obligation was on the employer to provide the
Claimant with alternative employment whether or not there was co-operation from the trade union and that R
should have ignored the bumping rule. R appealed on the basis that it was unfair of the ET to have ruled on the
issue without determining whether the issue was in fact before them.
The EAT allowed the appeal. Langstaff J considered the list of issues with a fine toothcomb and in a way which
will send a chill down the spine of many practitioners! The list of issues did not make specific reference to
bumping but a rather more general reference to taking reasonable steps to find an alternative position.
Langstaff J held that the list of issues did not put R on notice that the bumping argument would be run and
neither did C’s evidence. The issues only became apparent when the C’s counsel conducted his cross
examination on that basis. At that point R’s counsel objected and said that it had not been raised before. C said
that there was no need to raise it because “not finding alternative work” in the list of issues encompassed it.
The ET did not rule on the point even though R said that it might need an adjournment to deal with the point if it
was being raised. By the time the evidence finished R was not clear as to whether the list of issues extended to
encompass bumping. The ET only dealt with this for the 1 st time in its judgment. This did not give R the
opportunity to apply for an adjournment or to bring any additional evidence. Since there was a real possibility
that the application for an adjournment might have been successful the EAT allowed the appeal but remitted the
matter to the same ET to reconsider the matters raised by Langstaff J.
This is a helpful case for those considering the extent to which a list of issues will bind a party. Langstaff J’s
approach to whether or not the list of issues contained an allegation that other employees should have been
bumped from their jobs as a reasonable adjustment is instructive. Those bringing or defending reasonable
adjustments cases should be careful to specify accurately the adjustments that they say are in issue. In this case
Langstaff J considered that the list of issues was unclear and held that the ET was at fault for not dealing with R’s
objection to the particular issue being argued.