Andorful v London Borough Of Hammersmith & Fulham

An Employment Judge may determine a confined factual issue at a pre-hearing review where a prior case-management direction requires it and the Tribunal rules permit evidence to be received. A discrimination claim may then be struck out if the evidence and findings show that the pleaded allegation has no reasonable prospect of success; further fact-finding at a full hearing is unnecessary.

Where an Employment Tribunal elects to take a party’s means into account when assessing costs, it must consider all material information about that party’s financial position. Failure to do so is an error in the exercise of the costs discretion.

The Claimant brought complaints including race discrimination after her employment ended. A case-management direction identified a limited issue for a pre-hearing review: whether an HR manager had deliberately misstated visa information to create a pretext for dismissal.

The Employment Judge heard evidence from the HR manager, made findings on that issue, struck out the race discrimination claim, and ordered the Claimant to pay £10,000 costs. The Claimant appealed both orders.

The central issues were whether the Judge had impermissibly conducted a partial trial and whether the costs assessment properly took account of the Claimant’s means.

1. Appeal allowed in part. The appeal against strike-out was dismissed. The appeal against costs succeeded only to the extent that the costs award was reduced from £10,000 to £5,000.
2. The earlier case-management order confined the pre-hearing review to the factual allegation that the HR manager had deliberately fabricated visa information as a pretext for dismissal. The Employment Judge was bound to follow that direction. Under the Employment Tribunal rules, the Judge could consider evidence at the review.
3. The evidence established that the HR manager had made, then promptly corrected, an error concerning the Claimant’s visa status. The later immigration advice which led to dismissal was independently wrong and the Respondent reinstated the Claimant when that error was corrected. The finding that the alleged fabrication was wholly implausible was therefore open to the Judge.
4. Accordingly, unlike the circumstances addressed in Anyanwu and Ezsias, no further fact-finding at trial was required. The identified race discrimination allegation had no reasonable prospect of success and was bound to fail. The strike-out order stood.
5. The costs jurisdiction was engaged once the claim was permissibly found to have no reasonable prospect of success. However, having chosen to consider means, the Employment Judge failed to take full account of material evidence that the Claimant was on maternity leave receiving reduced pay and rented her home. Applying the principle in Barnsley MBC v Yerrakalva, that was an error. A remittal was disproportionate, so the EAT substituted £5,000.

• Employment Appeal Tribunal: allowed the appeal only as to costs, substituting an award of £5,000; dismissed the appeal against strike-out.
• Employment Tribunal (Watford): at a pre-hearing review, struck out the race discrimination claim and ordered the Claimant to pay £10,000 costs.