If you’re bringing an employment tribunal claim, you’ll probably be asked to agree a “List of Issues” with your employer. Here’s what a list of issues is, what it should include, and why getting it right matters.
A list of issues sets out the legal claims you’re making and the questions the tribunal will need to answer to decide them. It’s usually discussed at a preliminary hearing, and once it’s agreed, the tribunal will generally stick to it. That means any claim left off the list may not be considered at the final hearing.
Valla can help you with reviewing your list of issues if you ever need any help.
What is a list of issues?
The list of issues is a structured list of the questions the Tribunal must answer to decide the case.
It is not:
- a witness statement;
- a full narrative of the dispute;
- a list of every disagreement between the parties;
- A legal submission; or
- a list of documents or evidence.
The list should identify the disputed questions of fact and law. It should be neutral and concise.
The list of issues assists the parties in understanding what evidence is relevant. It also helps the Tribunal determine what must be decided in its judgment at the final hearing.
A list of issues is usually ordered in advance of a preliminary case management hearing. Valla strongly suggest that you draft your own List of Issues ahead of the preliminary hearing as this can help you understand your case. Strategically, it can demonstrate your willingness to co-operate with the Respondent or their representatives and show an understanding of the legal claims and process. It can also:
- Help to encourage early settlement;
- highlight to the judge whether an expert report is needed, whether any applications to amend your claim need to be made and/or or whether additional evidence is needed; and
- Help to focus and narrow your claims
Drafting a list of issues
Step 1: Identify each legal complaint
Each issue should map directly to a legal claim in your ET1. You do not need to include background facts or context in the List of Issues itself.
A common mistake is making issues too vague (e.g. 'Was I discriminated against?') or too broad (e.g. listing every incident rather than identifying the legal question each one relates to). Aim for clear, concise legal questions tied to specific acts or omissions.
If a friend or family member asked you what would fix the problem, what would you say? An honest, reasonable approach is the best idea.
Start with the ET1 claim form and any amendment permitted by the Tribunal. List each claim separately, for example:
- unfair dismissal;
- wrongful dismissal or notice pay;
- direct discrimination;
- discrimination arising from disability;
- failure to make reasonable adjustments;
- harassment;
- Victimisation;
- Detriment for making a protected disclosure
- unlawful deduction from wages;
- holiday pay; or
- breach of contract.
A matter raised only in evidence or correspondence is not automatically part of the claim. If you wish to add or change a claim, an application to amend may be required.
Step 2: Identify the essential elements of each claim
For each legal complaint, identify the questions you must establish and any relevant defence raised by the respondent.
Step 3: Separate liability and remedy
“Liability” concerns whether the respondent is legally responsible. “Remedy” concerns what should be awarded or ordered if the claim succeeds.
Step 4: Use neutral questions
Each issue should normally be framed as a question. Avoid on sided argumentative or emotive language.
Step 5: Add core factual detail
Where relevant, identify:
- who acted;
- what was allegedly done or omitted;
- when it occurred;
- the protected characteristic or protected act relied upon;
- the contractual term relied upon; and
- the reason given by each party.
TEMPLATE - DRAFT LIST OF ISSUES
[NOTE - THE BELOW SHOULD BE TAILORED and SPECIFIC TO EACH CASE; IT INCLUDES A SAMPLE OF CLAIMS ONLY]
A. Preliminary/Jurisdictional matters (if relevant)
- Were the claims presented within the applicable statutory time limits?
- If not, does the Tribunal have power to extend time, and should it do so?
- Does the Tribunal have jurisdiction to determine each claim? (for example, did the claimant have the requisite continuity of service)
- What was the claimant’s status at the relevant time: employee, worker or self-employed contractor?
B. Unfair dismissal
- Was the claimant dismissed?
- What was the principal reason for dismissal?
- Was that reason a potentially fair reason under the Employment Rights Act 1996?
- Did the respondent act reasonably in treating that reason as sufficient to dismiss the claimant?
- Did the respondent follow a fair procedure?
- If the procedure was unfair, what was the likelihood that the claimant would have been dismissed in any event, and when?
- Did the claimant cause or contribute to the dismissal by blameworthy conduct?
- Was there any unreasonable failure to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures?
- What remedy, if any, should be awarded?
C. Direct discrimination
Protected characteristic: [for example, race, sex, disability, age etc - there are 9 under the Equality Act 2010]
-
Did the respondent subject the claimant to the following treatment:
-
[insert act or decision, date]?
-
[Insert act or decision, date]?
-
-
Was the treatment less favourable?
-
If so, who is the actual comparator, or what are the circumstances of the hypothetical comparator?
-
Were the claimant’s circumstances materially the same as the comparator’s circumstances?
-
Was the less favourable treatment because of [protected characteristic]?
-
If direct age discrimination is alleged, can the respondent establish any applicable objective justification? [Note: this defence to direct claims is only available for age discrimination cases]
D. Harassment
Protected characteristic: [Protected Characteristic]
-
Did the respondent engage in the following unwanted conduct:
- [Conduct, date]?
- [Conduct, date]?
-
Was the conduct related to [protected characteristic]?
- Did the conduct have the purpose or effect of:
- violating the claimant’s dignity; or
- creating an intimidating, hostile, degrading, humiliating or offensive environment?
- In considering the effect of the conduct, what should the Tribunal conclude having regard to:
- the claimant’s perception;
- the other circumstances of the case; and
- whether it was reasonable for the conduct to have that effect?
E. Victimisation
-
Did the claimant carry out a protected act by [describe the complaint, allegation or proceedings] on [date]?
-
Did the respondent subject the claimant to the following detriment:
- [Detriment, date]?
- [Detriment, date]?
-
Was the claimant subjected to that detriment because the claimant had carried out, or the respondent believed the claimant had carried out or might carry out, the protected act?
F. Disability discrimination and reasonable adjustments
-
Was the claimant a disabled person within the meaning of the Equality Act 2010 at the relevant time?
-
Did the respondent know, or could it reasonably have been expected to know, that the claimant was disabled?
-
What was the relevant provision, criterion or practice, physical feature, or lack of auxiliary aid?
-
Did it place the claimant at a substantial disadvantage compared with persons who were not disabled?
-
What reasonable adjustment or adjustments does the claimant say should have been made?
-
Was it reasonable for the respondent to take those steps?
-
Did the respondent fail to take those steps?
-
If discrimination arising from disability is alleged:
-
what was the unfavourable treatment;
-
what was the “something” arising in consequence of disability;
-
was the claimant treated unfavourably because of that “something”; and
-
can the respondent show that the treatment was a proportionate means of achieving a legitimate aim?
G. Wrongful dismissal or notice pay
-
What notice period was the claimant entitled to receive?
-
Did the respondent dismiss the claimant without giving or paying for that notice?
-
Was the respondent entitled to dismiss without notice because the claimant had committed a repudiatory breach of contract, commonly described as gross misconduct?
-
If not, what sum is due for notice pay and contractual benefits during the notice period?
H. Remedy
If one or more claims succeed:
-
What financial losses were caused by the unlawful conduct?
-
Has the claimant taken reasonable steps to reduce those losses, known as “mitigation”?
-
Should compensation include loss of earnings, pension loss, loss of statutory rights or other benefits?
-
If discrimination is established, what award should be made for injury to feelings?
-
Is an award for personal injury or aggravated damages claimed and, if so, on what basis?
-
Should interest be awarded?
-
Should any compensation be reduced because of:
-
contributory conduct;
-
a failure to mitigate loss;
-
the prospect that employment would have ended in any event;
-
receipt of other payments; or
-
any other statutory provision?
-
Should any award be increased or reduced for unreasonable failure to comply with an applicable ACAS Code?
-
Is reinstatement or re-engagement sought [For unfair dismissal claims] and, if so, is such an order practicable?
-
What is the correct gross and net value of any award?
Next steps
Valla knows it can seem quite overwhelming, but Valla can help. We have a team of legal experts who are very used to reviewing List of Issues for all types of claims and cases.
If you want help, we have legal experts who can host on-on-one sessions with you, or we have a document review service where an expert can review the List of Issues, or any other tribunal documents that you write.
How do I then submit my list of issues?
The list of issues usually forms part of preparation for a Preliminary Hearing. You should send the list to the Respondent/their solicitor to try and agree the list. You will also need to send to the Tribunal in accordance with any directions or relevant Practice Direction. Sign up for your free account.