The EAT case of Mr G Butler v Mellons Ltd tells a cautionary tale in relation to the drafting of lists of issues. In this case the Claimant’s list of issues suggested that if a finding of discrimination was made then the constructive unfair dismissal claim would succeed and vice versa. It did not, allow for the possibility that there may not be a finding of discrimination but the actions may have lead to a breach of contract nonetheless. Unfortunately, the Tribunal was guided by the list of issues and therefore found that as there was no discrimination, there was no breach of the implied term of trust and confidence.
Take care when drafting lists of issues and review before the day in tribunal. They are often overlooked as less important than witness statements but as this case shows they can make or break a case.