At a time of rising case numbers and delays in having cases heard, I have no doubt that the task of an employment tribunal judge is difficult. A key way the ET system attempts to manage caseloads (disproportionately to the detriment of claimants I should add) is by “robust case management.” Robust case management can sometimes be a euphemism for judicial bullying of unrepresented litigants (or where claimants are not professionally represented), but not necessarily so.
To give two examples in cases I attended (acting as union rep picking up case from another rep), both closed preliminary hearings (case management hearings). In one, the judge (a regional EJ) raised an issue of law relating to a claim and suggested it was weak – she was however very clear to say there was no obligation to rush to decision to withdraw a claim and advice should be sought. I thanked the EJ for the note – and asked for 2 weeks to obtain legal advice and undertook to confirm position on claim. Had the claim been proceeded with I am sure the Respondent would have sought a deposit order (was not quite strike off territory) and that that would have been successful but that specific claim was withdrawn by the claimant before the two weeks were out because the employment judge’s concerns were entirely legitimate and proper. In the second case a judge made a similar observation, but the tone was of an entirely different character – the judge was intimidating the claimant to drop the case and gave very limited window (10 mins adjournment) to reconsider position before consideration was given to strike out the claim. The thing is although the case was withdrawn I do not even think the judge was right about the point of law – but I made a mistake in cowing to the pressure (thankfully it was only a small part of the claim). Both judges engaged in “robust case management” but one was fair and in retrospect, I appreciated the intervention, while the other was bullying and preyed on the claimant’s vulnerability against a Respondent represented by Counsel.
Case management should be about identifying key legal issues and giving directions to allow a fair hearing to those issues, but it can easily descend into an obstacle to claimants in achieving a fair hearing. The Employment Appeal Tribunal case of Mendy v Motorola Solutions UK Ltd (2022) engages these issues, although reading the case there is no indication that I can see of any judicial impropriety.
In Mendy the claimant was not represented by anyone else, but in a long particulars of claim document had included a complaint of indirect discrimination. This was not a case where the claim was ambiguous, the complaint had been very clearly pleaded, albeit in a very long particulars of claim document.
However, when the claim was considered by an employment judge at a closed preliminary hearing the following decisions and directions were made:
There is a reference in the claim form to indirect discrimination. There is no discernible claim of indirect discrimination. It appears that the provisions, criteria or practices (PCPs) relied on appear to be allegations of direct discrimination. I can discern no claim of indirect discrimination. Should the claimant wish to bring a claim of indirect discrimination he must apply to amend and he should set out the essential elements of such a claim
And,
Indirect discrimination
3.5 There being no discernible claim of indirect discrimination before the tribunal at present, if the claimant wishes to allege indirect discrimination he should serve an application to amend. That application should be served on or before 7 December 2020 and should address the following:
3.5.1 the provision, criterion or practice relied on or if more than one, each of them;
3.5.2 the disadvantage experienced by the group with the particular characteristic on which the claimant relies in relation to each provision, criterion or practice relied on; and
3.5.3 whether it is alleged the claimant was put at that disadvantage for the same reason as the relevant group.”
The effect of that decision was therefore to rule that there was no indirect discrimination in the claim which meant the claim that had in fact been made had been ended without any opportunity for argument.
The claimant appealed the decision. In fact, the employment judge recognising the error sought to revoke the decision which was itself an issue in the appeal but not one I am addressing here.
The key finding of the appeal is summarised at paragraph 39 of the judgment:
Contrary to the respondents’ submissions, it is clear that the effect of the November 2020 order was to remove any complaint of indirect discrimination from the face of the claim before the ET. This was not a case where the claim in issue was ambiguous and the ET’s order was merely providing clarification of how the claimant had stated his case was being pursued (effectively recording a further particularisation of the claim made at the case management hearing); the ET was itself stating that it did not recognise that such a claim could be pursued on the basis of the pleaded case. The effect of the ET’s ruling was thus to determine that the claimant’s claim of indirect discrimination could not proceed and, absent a successful application to amend, that brought any such claim in the proceedings to an end. That, in my judgement, amounted to a final determination of the claim of indirect discrimination that the claimant had made in the ET proceedings at that stage. As a determination made on the pleadings, without any consideration of the evidence, it was tantamount to a striking out of the claim. Thus understood, it is apparent that the ET erred in its ruling at paragraph 3.5 schedule B of its November 2020 order. Whatever EJ Hodgson’s subjective intention, the effect of that paragraph was to strike out the claim of indirect discrimination absent the procedural safeguards provided by rule 37(2) and at a private preliminary hearing, contrary to rule 56. Moreover, as this amounted to a determination of this part of the claimant’s claim, the ET’s decision was properly to be understood as a judgment, not merely a case management order, such that the subsequent revocation of paragraph 3.5 under rule 29 (per the ET’s decision of 8 December 2021) could be of no effect.
Paragraph 39 of Mendy (2022).
Rule 56 of the ET rules requires that that a Preliminary Hearing is in private unless it considers an issue in Rule 53(1) of the rules. One of issues is whether a claim or response should be struck out (Rule 53(1)(c) of the 2013 Rules).
Mendy is not a surprising decision but the finding that no claim that has been pleaded can be removed from a claim without a open hearing of the tribunal – which will normally mean a separate hearing from any preliminary hearing. That should be uncontroversial but the judgment also recognised that “it is commonplace for ETs, carrying out their case management functions at a private preliminary hearing, to seek to clarify the claims that are being pursued and to draw up a list of issues to be determined at the full merits hearing in order to decide those claims.” In their earnestness to ‘robustly manage’ cases I wonder how many other claimants have had their cases illegitimately curtailed?
The key takeaway is that under no circumstances can an employment tribunal in a closed preliminary hearing rule a claim that is pleaded as being struck out – such a decision can only be taken in an open hearing with prior notice to the claimant of the purpose of the hearing. If a judge decides a case is not pleaded wrongly then that is a breach of the ET Rules and an error of law. Faced with a situation where a claimant is not legally represented as so cannot receive competent legal advice there and then they should be extremely cautious in withdrawing a case at a preliminary hearing without accessing advice before doing so. If a case is indeed dismissed without a open hearing after such a refusal then that decision is itself likely to be unlawful.
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