Tribunal list of issues
One of the key parts of case management in the employment tribunal is formulating a list of issues but that list is not to be treated like a tablet of stone and if the claimant at a case management hearing inadvertently drops a claim which is clearly within the terms of the Form ET1 the tribunal at the final hearing should consider it and amend the list of issues. This was the primary message in the Court of Appeal case of Mervyn v BW Controls Ltd  EWCA Civ 393.
Mummery LJ in Parekh v LB of Brent  EWCA Civ 1630 para 31 “A list of issues is a useful case management tool developed by the tribunal to bring some semblance of order, structure and clarity to proceedings in which the requirements of formal pleadings are minimal”.
Ms Mervyn had a viable constructive dismissal claim and in her case management agenda form repeatedly describes her complaint as being “unfair dismissal (including constructive dismissal)”. She however disavowed resignation at a Case Management hearing which she said was “rushed and confusing”. The Claimant also maintained during the tribunal hearing that she did not resign, but she represented herself and did not appreciate the nuances of the cause of action. Bean LJ described what she had pleaded was a paradigm case to employment lawyers of a constructive dismissal case.
The Court of Appeal had however to balance the principles that the tribunal must be careful not to invent a case for a litigant (especially given that a key element of the claim resignation was disavowed) and the principle that an ET has a duty to ensure that the litigant in person understands the nature of a claim. The claimant said that it was clear that she had disavowed the constructive dismissal claim inadvertently and contended that the tribunal at the main hearing should have ensured that “the Claimant really wanted to withdraw the constructive dismissal claim and understood the consequences of doing so”.
There is authority (Land Rover v Short EAT0496/10) that if the list of issues is agreed that will limit the issues at the substantive hearing unless there are exceptional circumstances. There is also authority that the tribunal “is not required to stick slavishly to the list of issues agreed where to do so would impair the discharge of its core duty to hear and determine the case in accordance with the law and evidence”.
There is of course some flexibility which can be applied because case management decisions are not final so can be easily reconsidered at the main hearing. There is no need to find exceptional circumstances before a tribunal can depart from a list of issues although Bean LJ says “it will no doubt be an exceptional step to take” (para 38). The sensitive balance was enunciated in Mensah v E Herts NHS Trust  IRLR 531 by Peter Gibson LJ that tribunals shall be “as helpful as possible to litigants in formulating and presenting their cases” whilst the ET was not under a “duty to hear every allegation in the originating application unless abandoned”.
The key guidance given to tribunals in Mervyn is that
In this case although the Claimant disavowed the suggestion she had resigned, there was clearly a claim for constructive dismissal which should have been heard so that it was necessary for the constructive dismissal to be heard.
It is now 20 years since the ban on gays serving in the military was lifted and I acted (together with David Pannick QC, Laura Cox, the late Peter Duffy and several others) in the ground breaking case which led to this change. I represented one of the applicants, the naval claimant John Beckett. The case which led to the new open policy being adopted was decided by the European Court of Human Rights on 27 September 1999. We had lost at each stage in the UK but won at Strasbourg and that led to the change in practice which did not require legislation (there was an announcement in the House of Commons by the Secretary of State for Defence).
In retrospect with the distance of twenty years (and the changes in societal attitudes to gays) it just seems so obvious that we should have won the case in the UK but it was very hard fought and success was not at all assured. Indeed, this is the only case in which I recall that Counsel was booed in court, that is Stephen Richards QC (later a Lord Justice) who acted for the Ministry of Defence.
Four test cases
There were four test cases brought in the Administrative Court as judicial review applications to test the legality of the policy which was to ban gays from serving in the military but marching behind them were some forty cases which were brought in the employment tribunals. The cases were backed by Stonewall and Liberty.
The other three claimants were Jeanette Smith a senior aircraft woman; Graeme Grady a sergeant who worked as a personnel administrator in the RAF and had been in the forces for 14 years often in highly sensitive positions; and Duncan Lustig Preen, a midshipman in the executive branch of the Navy who was a lieutenant commander. All had exemplary service records.
The policy under review was known as the Armed Forces’ Policy and Guidelines on Homosexuality distributed in December 1994 (with changes made by the Criminal Justice and Public Order Act 1994) and included this paragraph:
‘Homosexuality, whether male or female, is considered incompatible with service in the armed forces. This is not only because of the close physical conditions in which personnel often have to live and work, but also because homosexual behaviour can cause offence, polarise relationships, induce ill-disciplined and, as a consequence, damage morale and unit effectiveness. If individuals admit to being homosexual whilst serving and their Commanding Officer judges that this admission is well-founded they will be required to leave the services…’
There had been a review of the policy a year before the case was launched. The controversial Report of the Homosexuality Policy Assessment Team, February 1996 concluded
‘The starting-point of the assessment was an assumption that homosexual men and women were in themselves no less physically capable, brave, dependable and skilled than heterosexuals. It was considered that any problems to be identified would lie in the difficulties which integration of declared homosexuals would pose to the military system which was largely staffed by heterosexuals. The HPAT considered that the best predictors of the ‘reality and severity’ of the problems of the integration of homosexuals would be the service personnel themselves’ (paragraph 30 of the report).
The only countries known to still be operating blanket bans at this point in time were Turkey and Luxembourg, yet it was apparently considered vital to the future of the armed forces in the UK that it remain. The problems anticipated by the Assessment report “included controlling homosexual behaviour and heterosexual animosity, assaults on homosexuals, bullying and harassment of homosexuals, ostracism and avoidance, ‘cliquishness’ and pairing, leadership and decision-making problems including allegations of favouritism, discrimination and ineffectiveness (but excluding the question of homosexual officers taking tactical decision swayed by sexual preference), sub-cultural friction, privacy/decency issues, increased dislike and suspicions (polarised relationships), and resentment over imposed change especially if controls on heterosexual expressions also had to be tightened” (see Section F.II of the report).
There were some heart-rending details of prurient and distressing investigations by Military Police into the sex lives of those who had come out which were presented in the court papers (and these are also to be found in an excellent recently published book Fighting with Pride by Craig Jones and others, Pen and Sword, 2020) . There were extremely prurient enquiries about partners and as an example Ms Smith was asked whether she was “into girlie games like hockey and netball”. Mr Grady was questioned as to whether his wife knew that he really was gay and was told that they wanted to verify his admission that he was gay as they thought it might be fraudulent attempt at early discharge from the Services. In this case they took his digital diary and many letters to his partner.
The basic case for the Ministry of Defence in their defence to the claims was that to admit gays to the military would interfere with military morale and consequently would have a substantial and negative effect on the fighting power and operational effectiveness of the armed forces. The Ministry of Defence also said that there would be problems about toilets provision.
The Administrative Court at first instance consisted of Simon Brown LJ and Curtis J who upheld the policy, but the former (unusually in a judgment) said that the tide of history was against the MOD as indeed in due course it proved to be. They however decided that the policy was not unreasonable on the Wednesbury test of perversity. Simon Brown LJ however noted that in none of the cases was it suggested that the applicants’ sexual orientation had in any way affected their ability to carry on their work or had any ill effect on discipline. Nevertheless, he said that it was only if the purported justification “outrageously defies logic or accepted moral standards” that the court could strike down the Minister’s decision. The court importantly decided they had no power to interpret the Convention.
Bingham LJ in the Court of Appeal gave a strong example of Judicial restraint in saying that “courts owe duty to remain within their constitutional bounds and not trespass beyond them. Only if it were plain beyond sensible argument that no conceivable damage could be done to the armed services vices as a fighting unit would it be appropriate for this court now to remove the issue entirely from the hands of both the military and government”. He commented that the applicants’ arguments were “of very considerable cogency”. He also said that “the fact that a decision maker failed to take account of Convention obligations when exercising an administrative discretion is not of itself a ground for impugning the exercise of that discretion”. The Court of Appeal thus rejected the appeals and demonstrated the need for human rights legislation to be incorporated into UK law.
THE STRASBOURG COURT
The Human Rights Act 1998 was not in place at this time so that the UK courts could not adjudicate on the Convention itself. It was merely part of the background. The Strasbourg Court however was established precisely to do this. It held in Smith & Grady v UK (1999) 29 EHRR 493 that there was a prima facie breach of the right to a private life under Article 8 of the Convention (a point not contested by the UK Government) but the key question was whether it was justified. For this it was necessary that it be in accordance with the law, in pursuit of a legitimate aim and necessary in a democratic society. The Court held that that it was not shown that interference was necessary in a democratic society or that it would have a substantial negative effect on morale and fighting power and the effectiveness of the armed forces.
The court importantly directed itself that such assertions as to a risk to operational effectiveness must be “substantiated by specific examples” (para 89) to be recognised. This notion of the UK military was it held founded solely on negative views of gays. These were said by the court to “range from stereotypical expressions of hostility to those of homosexual orientation to vague expressions of unease about the presence of homosexual colleagues” (para 97). At para 105 the court “concluded that convincing and weighty reasons have not been offered by the Government to justify the policy or…the consequent discharge of the applicants from these forces”. The court thus declared that the ban was contrary to the European Convention on Human Rights to which the UK had signed up. Although this was not binding as a matter of UK law the Government agreed to change the policy (which did not require legislation).
One of the key aspects of the victory was that we accepted that there would have to be an Armed Forces Code of Social Conduct so that gay relationships were regulated in the same way as straight people in respect of for example public displays of affection. This was adopted in January 2000.
In 2007 the Ministry of Defence issued a formal apology to those affected by its former policy. This was an important milestone in the battle for gay rights which include clashes over the age of consent, adoption and gay marriage.
The case is also important more generally in the protection of the rights of privacy and is frequently cited in Strasbourg jurisprudence. It also points out a wider point of the importance of the protections in the UK ushered in by the Human Rights Act. It was because of the lack of such incorporation of the European Convention on Human Rights that the UK courts were unable to protect the rights of the claimants. The case set the scene for the HRA. Given the hostile approach of the present Government to that convention it is a reminder of why it is so necessary. It is appropriate to salute the bravery of those who sacrificed their careers and tragic that they were put in a position where they had to do so.