Kerr v Ernst & Young Services Ltd

An Employment Judge cannot use general case-management powers at a case management discussion to remove part of a claim or prevent a remedy. An order which effectively strikes out allegations, or determines civil rights, must be made under the specific strike-out power and in accordance with the prescribed procedure. The affected party must have a prior opportunity to make representations; an opportunity to seek review after the order is made is insufficient. A conclusion that a fair hearing is impossible must also be rationally supported by the evidence. The power to control issues and hearing length recognised in Commissioner of Police of Metropolis v Hendricks remains subject to the procedural rules.

The claimant appealed against orders made at a pre-hearing review and case management hearing in the London South Employment Tribunal. The Employment Judge decided that allegations of sex discrimination against three former or departed employees could be considered only as background evidence, and could not found a remedy. The order was made after submissions from the respondents but before the claimant had been heard. The central issues were whether the Employment Judge had jurisdiction to make the order at a case management discussion, whether the procedure was fair, and whether the conclusion that the respondents could not obtain witness evidence was rationally open to her.

1. The appeal succeeded on all three grounds. The order was, in substance, a decision preventing the claimant from pursuing remedies for complaints against three named individuals. It therefore either struck out part of the claim or determined the claimant’s civil rights.

2. Under the ET Constitution and Rules Procedure Regulations 2004, a case management discussion is an interim hearing concerned with procedure and management. It cannot determine civil rights or make an order which is in substance a strike-out. The general case-management power in regulation 10 could not be used where the specific strike-out power in regulation 18(7)(f) governed. Care First Partnership Ltd v Roffey [2001] ICR 87 was applied. The guidance in Commissioner of Police of Metropolis v Hendricks [2002] EWCA Civ 1686 had to be exercised within those constraints.

3. The Employment Judge acted procedurally unfairly. Before making an order under regulation 18(7)(f), or an equivalent interim order under regulation 18(2)(a), she had to give the claimant an opportunity to make representations. Allowing submissions on a subsequent review did not cure the defect and breached natural justice.

4. The decision was also perverse. The materials showed that the respondents could contact, or had previously obtained evidence from, the individuals concerned. The evidence did not rationally establish that live evidence could not be obtained eight months later. No reasonable Tribunal could have concluded that a fair hearing was impossible on that material.

5. Paragraph 5 of the Orders and Case Management Directions dated 8 October 2010 was struck out. The matter was not remitted for a fresh strike-out decision, although the respondents remained free to make a proper application under regulation 18(7)(f).

• Employment Appeal Tribunal — Appeal from orders made by the London South Employment Tribunal at a pre-hearing review and case management hearing on 1 October 2010. Appeal allowed and paragraph 5 of the order struck out.