Dozie v Addison Lee plc

An Employment Appeal Tribunal should scrutinise a proposed consent order allowing an appeal. Judgments and orders should be set aside only where there is good reason, and the Tribunal must consider their consequences and any wider public interest.

Claims requiring factual findings should not ordinarily be struck out on an interlocutory application. A hearing cannot proceed on claims previously struck out until the appeal against that order has been determined. An adjournment is appropriate where newly revived and enlarged claims cannot fairly be tried within the available time, particularly where issues remain undefined or another appeal is outstanding.

The claimant brought multiple employment claims against her former employer, including discrimination, victimisation and constructive unfair dismissal. An Employment Tribunal struck out several claims, refused permission to amend another, made a deposit order and struck out a further claim for non-compliance with an unless order.

Several appeals were brought to the Employment Appeal Tribunal. The respondent later consented to orders allowing two appeals and restoring the affected claims. The claimant also appealed against the refusal to postpone a five-day Employment Tribunal hearing, which had been due to proceed despite the earlier orders remaining in force.

The central issues were whether the consent orders should be approved and whether the remaining hearing should be adjourned.

1. The appeals against the Employment Tribunal judgment dated 30 July 2012 and the consequential deposit order were allowed by consent. The Employment Appeal Tribunal scrutinises consent orders under paragraph 18.3 of the Employment Appeal Practice Direction (2013). Consent alone is insufficient because Tribunal judgments deserve respect, tactical agreements may have unintended consequences, and there may be a wider public interest in the decision.

2. There was real substance in the grounds concerning flexible working, race discrimination, victimisation and direct associated disability discrimination. Those complaints should, applying established principles, generally be tried on the facts rather than determined by adopting factual assertions advanced by the respondent at an interlocutory stage.

3. The Employment Tribunal’s conclusion that no indirect associative disability discrimination claim existed was correct on the wording of section 19 of the Equality Act 2010. However, the possible requirement of European law made the issue arguable and important. It should not have been finally resolved on an interlocutory application. The restored claim was to be determined after proper factual findings and consideration of the applicable law.

4. The race discrimination claims remained subject to any limitation points. Those points had not been determined and the Tribunal was required to consider them, even if the respondent did not pursue them. The claims also required clearer definition.

5. The refusal to adjourn was set aside. The Employment Tribunal could not proceed with claims that had been struck out until the relevant appeal had been heard and determined. The reasons for refusing postponement also failed to address the enlarged issues, the limited time available, the uncertainty concerning the race claims and an outstanding appeal. A rushed three-day hearing would be deeply unsatisfactory and contrary to the interests of justice.

6. The hearing of all remaining claims was adjourned. A case management discussion, more accurately a preliminary hearing for case management, was directed before relisting. Other appeals were dismissed where the relief had effectively been granted or the appeal had become unnecessary.

7. Under the amended Employment Appeal Tribunal Rules 1993, a properly instituted appeal remained extant pending resolution of fee or fee-remission questions. The Tribunal therefore had jurisdiction to determine the urgent adjournment appeal. Any liability to pay a fee could be addressed subsequently, including an application for reimbursement under rule 34A(2A).

• Employment Appeal Tribunal: allowed by consent the appeals against the Employment Tribunal judgment dated 30 July 2012 and consequential deposit order; dismissed other appeals rendered unnecessary by that relief; allowed the appeal against refusal to adjourn and remitted the remaining claims for case management and relisting.
• Employment Tribunal: struck out or otherwise disposed of several discrimination and related claims, made a deposit order and listed the surviving claims for a five-day hearing.