Gloucestershire Primary Care Trust v Sesay (Practice and Procedure : Amendment)

An appellate court will not interfere with discretionary employment tribunal case-management decisions unless the judge made an error of legal principle or reached a conclusion outside the permissible range. Reasons must be read fairly and in the light of the evidence and submissions. They need not be elaborate if the parties can understand why the decision was made.

Third-party harassment may amount to a continuing state of affairs where, after the statutory duty has been triggered, an employer’s alleged failure to take reasonably practicable preventive steps continues throughout employment. A deposit order requires consideration of whether a claim has little reasonable prospect of success. An isolated reference to the strike-out test will not invalidate the decision where the reasons as a whole show that the correct test was applied.

The Claimant, a black nurse, brought claims including race discrimination and discriminatory unfair dismissal. Her later particulars added victimisation and indirect discrimination and alleged harassment by patients over a lengthy period.

At a pre-hearing review, Employment Judge Owen permitted the additional claims as amendments, held that the third-party harassment claim was in time or, alternatively, extended time on a just and equitable basis, and refused the Respondent’s application for a deposit order. The Respondent appealed those case-management decisions.

The central issues were whether the judge had adequately explained his decisions and had erred in addressing limitation, amendment, third-party harassment, indirect discrimination, and the deposit-order threshold.

1. Appeal dismissed. Employment Judge Owen’s decisions were permissible exercises of case-management discretion. The Employment Appeal Tribunal found no error of principle, perversity, or other basis for intervention.

2. The judge’s reasons were sparse, but they were adequate when read generously with knowledge of the pleadings, evidence and submissions. It was apparent that he had accepted an alleged continuing discriminatory state of affairs, rather than treating the complaints solely as historic acts by patients. Employment Tribunals should not be subjected to an over-fussy critique of their reasons.

3. Under Equality Act 2010, section 40, the duty to take reasonably practicable steps to prevent third-party harassment was capable of continuing after it had been triggered. It was therefore open to the Claimant to allege an ongoing state of affairs comprising harassment of black nurses and a continuing failure by the employer to take preventive action. The limitation ruling could accordingly stand.

4. The amendment ruling was also sound. The claims for victimisation and indirect discrimination were founded on facts already pleaded and could properly be regarded as a relabelling exercise. The judge had considered the chronology, prejudice and the need to control the material advanced at the eventual hearing.

5. Although the judge initially used language associated with strike-out when refusing a deposit order, his reasons as a whole showed that he addressed the correct question: whether the claims had little reasonable prospect of success. Given the substantial evidence still to be heard, he was entitled to refuse a deposit order while warning the Claimant that costs might later arise.

6. The EAT emphasised that appellate challenges to discretionary case-management and pre-hearing-review decisions should rarely succeed. This appeal did not meet the required threshold.

• Employment Appeal Tribunal: Appeal dismissed: [2013] UKEAT 0004_13_1206.
• Employment Tribunal: Employment Judge Owen allowed the amendments, held the relevant harassment claim in time or alternatively extended time, and refused a deposit order. The judgment was sent to the parties on 21 November 2012.