Dominic Faversham Group v McIntyre

On an appeal against a case-management decision, the Employment Appeal Tribunal intervenes only where the tribunal applied an incorrect legal principle, considered an irrelevant factor, failed to consider an essential factor, or reached a conclusion outside the range of reasonable disagreement.

Where Employment Tribunal claims overlap with related High Court proceedings, the tribunal must assess the overlap in substance, including its effect on remedy. It must also consider whether separating related Tribunal claims would create procedural unfairness or inefficiency. A stay is not automatic. The parties’ interests, the claimant’s health, the likely timetable, and coordination between jurisdictions may require urgent or concurrent case management.

Mr McIntyre brought Employment Tribunal claims for constructive unfair dismissal, disability discrimination and statutory sick pay after resigning from employment with Dominic Faversham Group. The employer subsequently began High Court proceedings alleging deletion and retention of electronic and hard-copy documents and sought a stay of the Tribunal proceedings.

The Employment Judge stayed the unfair dismissal claim but refused to stay the disability discrimination claim, holding that there was no overlap between the High Court proceedings and the discrimination claim. The appeal concerned whether that assessment was legally erroneous and whether the Judge had adequately considered the relationship between the Tribunal claims, the High Court proceedings, the claimant’s serious medical condition and the overriding objective.

1. Appeal allowed and decision set aside. The Employment Judge had erred in law by holding that there was no overlap between the disability discrimination claim and the allegations in the High Court proceedings. There was at least some overlap on remedy. Compensation under the Vento guidelines could not readily be assessed without considering whether the employment was in any event liable to termination for fundamental breach.
2. The Judge had also failed to consider the difficulty and possible unfairness of separating the disability discrimination and unfair dismissal claims. Hearing the discrimination claim and High Court proceedings first, followed by the remaining Tribunal claims, was not an obviously satisfactory course and might produce the worst of the available procedural outcomes.
3. For the purposes of the appeal, the traditional approach in Carter v Credit Change Ltd was applied. The Appeal Tribunal should intervene only where the decision-maker applied wrong legal principles, took account of an irrelevant legal factor, omitted a factor which it was legally essential to consider, or reached a conclusion outside the ambit of reasonable disagreement.
4. It did not follow that the Tribunal proceedings must await the High Court proceedings. The appropriate course was careful case management of both sets of proceedings. The claimant’s serious and potentially deteriorating medical condition was an important consideration. Although the general trend was to give priority to High Court proceedings, an urgent Tribunal hearing might be appropriate if the High Court timetable could not accommodate the claimant’s condition.
5. The matter was remitted for reconsideration by the Regional Employment Judge, or an Employment Judge delegated by him, with liaison with the Chancery Division judge responsible for the relevant list. The stay of the unfair dismissal proceedings could be reconsidered together with any application concerning the discrimination claim.

• Employment Tribunal: Employment Judge Shotter, by decision dated 5 April 2011, stayed the unfair dismissal claim but allowed the disability discrimination claim to proceed.
• Employment Appeal Tribunal: The decision was set aside and the stay issue was remitted for fresh consideration and coordinated case management.