Shodeke v Hill & Ors

Where an appeal alleges unfairness or bias going to the root of an Employment Tribunal hearing, an Employment Appeal Tribunal should not prematurely exclude related grounds of appeal. This is especially so where a successful challenge may require a fresh hearing of all issues. Although hopeless points may ordinarily be eliminated through case management, related grounds should await determination of the root challenge where severance may prejudice the coherent disposal of the appeal.

The appellant, formerly employed by the London Borough of Havering, brought Employment Tribunal proceedings alleging racial discrimination, victimisation, sexual discrimination and unfair dismissal after an unsuccessful restructuring selection process and her subsequent dismissal.

Following a 26-day Employment Tribunal hearing, she appealed to the Employment Appeal Tribunal. At a preliminary hearing held without notice to the respondents, the Employment Appeal Tribunal adjourned allegations of unfairness and bias for further evidence. It nevertheless ruled that grounds concerning the authority's duty under Race Relations Act 1971, section 71, and whether redundancy was the real reason for dismissal should not proceed.

The central issue was whether those grounds could properly be separated from allegations of unfairness and bias said to affect the whole Employment Tribunal hearing.

1. Appeal allowed unanimously. Lord Justice Robert Walker held that the Employment Appeal Tribunal had acted prematurely in excluding the two disputed grounds. Lord Justice Schiemann agreed with both his reasoning and conclusion.

2. The Employment Appeal Tribunal had correctly recognised that it could not yet decide whether the appellant's allegations of unfairness should proceed, and had adjourned them for further evidence. Those allegations were capable of going to the root of the Employment Tribunal's decision.

3. It was ordinarily sensible case management to eliminate hopeless grounds of appeal. Further, if unfairness were ultimately established, a rehearing of all issues would be highly likely. But that outcome was not certain. The court accepted that the alleged unfairness and bias could taint the whole matter, including the grounds concerning redundancy and section 71.

4. Accordingly, the related grounds should not have been determined separately before the unfairness and bias issues. The court indicated that the appropriate consequential order might be to strike out the final two paragraphs of the Employment Appeal Tribunal's order. There was no order as to costs.

• Court of Appeal (Civil Division): Allowed the appellant's appeal from the Employment Appeal Tribunal.
• Employment Appeal Tribunal: By an order of 28 March 2001, adjourned allegations of unfairness and bias for further evidence, but ruled that two related grounds of appeal should not proceed to a further hearing.
• Employment Tribunal: After a 26-day hearing, gave extended reasons promulgated on 24 January 2000 determining the appellant's employment claims.