Okoro & Anor v. Taylor Woodrow Construction Ltd & Ors

An Employment Tribunal must record and give reasons for an important procedural decision, particularly where a written application for postponement has been made. Where the decision and reasons are not properly recorded, time for appealing does not necessarily begin when the decision was made orally.

An Employment Appeal Tribunal should generally respect an Employment Judge’s broad case-management discretion where the relevant material has been considered and no procedural unfairness is shown. A series of bans or refusals of entry may arguably constitute a continuing state of affairs for limitation purposes, rather than merely repeated applications of a fixed past decision.

The Claimants appealed against Employment Judge Mahoney’s decisions following a pre-hearing review. The Employment Tribunal refused amendments, held that the Claimants were not employees or contract workers for the purposes of section 7 of the Race Relations Act 1976, found the discrimination claims out of time, and refused an extension of time.

The Claimants also challenged the refusal to postpone the hearing. A separate appeal concerned wasted costs orders made against their solicitor. The Employment Appeal Tribunal had to determine whether the procedural appeal was in time, whether the postponement decision was flawed, and whether the site bans could amount to a continuing act.

1. Procedural appeal in time. The Employment Judge had decided at the hearing to refuse the postponement application, but had not issued a written order or reasons for that decision. The Claimants had requested written reasons and were entitled to expect that the postponement decision would be included. In those circumstances, the appeal was not out of time. Alternatively, the discretion to extend time would have been exercised in the Claimants’ favour under rule 37.
2. Postponement decision upheld. The Employment Judge had considered the preparation of the bundles, disclosure and witness statements. The Employment Appeal Tribunal would not interfere with that broad case-management discretion. No particular missing document had been identified as causing material disadvantage, and the Claimants were unarguably correct to proceed with the pre-hearing review.
3. Practice guidance. Employment Judges should record the decision and reasons when refusing an important procedural application, especially one made in writing before the hearing.
4. Continuing act. It was reasonably arguable that repeated bans from building sites and refusals of entry represented a continuing state of affairs. The issue required a full hearing to determine whether the later events were merely reiterations of a fixed April decision or applications of a rule that remained in force. The related authorities included Coutts v Cure [2005] ICR 1098 and Lyfar v Brighton and Sussex University Hospitals Trust [2006] EWCA Civ 1548.
5. Further disposal. Grounds 2 to 7 were dismissed. The continuing-act issue was directed to a full hearing. The wasted-costs appeal was also permitted to proceed at that hearing because its outcome might be affected by the limitation issue.

• Employment Tribunal: Following a pre-hearing review, the Tribunal refused amendments, rejected the employment and contract-worker bases of the claims, held the discrimination claims out of time, and refused an extension of time.
• Employment Appeal Tribunal: The appeal against refusal of postponement was treated as in time, but the refusal itself was upheld. The continuing-act issue and wasted-costs appeal were directed to a full hearing.