Bham v 2gether Nhs Foundation Trust Gloucestershire

An Employment Judge conducting a Case Management Discussion under the Employment Tribunal Rules of Procedure 2004 could not determine a party’s civil rights or make an order concerning entitlement to bring proceedings or striking out. Where further particulars may advance allegations outside the existing claim, the proper course is first to decide whether permission to amend is required and, if so, whether it should be granted. Whether a proposed claim is new and time-barred is relevant to that exercise. Time-limit issues should not be conclusively determined through an impermissible strike-out at a Case Management Discussion.

The claimant, formerly employed by the respondent, brought proceedings including unfair dismissal, whistleblowing detriment, race discrimination and disability discrimination claims. He later served Further and Better Particulars of the discrimination claims and requested permission to amend where necessary.

At a telephone Case Management Discussion, the Employment Judge accepted the particulars in substitution for earlier particulars but struck out several allegations. The Judge held that some allegations were absent, previously made, or out of time, and that an extension of time was not just and equitable.

The claimant appealed that part of the order. The respondent did not oppose the appeal. The central issue was whether those determinations and the strike-out could lawfully be made at a Case Management Discussion.

1. Appeal allowed. Paragraph 2 of the Employment Judge’s order was made at a Case Management Discussion. Rule 17(2) of the Employment Tribunal Rules of Procedure 2004 prohibited the determination there of civil rights or obligations and prohibited orders listed in rule 18(7).
2. The impugned order was of a prohibited kind. It determined time-limit questions bearing on the claimant’s entitlement to pursue proceedings and struck out allegations. Those matters fell within rule 18(7)(a) and (b). The Employment Judge therefore had no power to make the order at that hearing.
3. The correct procedural question was whether the Further and Better Particulars advanced new claims outside the ET1s. If so, the Tribunal should decide whether permission to amend was required and whether it should be granted. In that exercise, the principles derived from Selkent Bus Company Ltd v Moore [1996] ICR 836 and Ali v Office of National Statistics [2005] IRLR 201 were relevant, including whether the allegations were new and out of time.
4. The EAT did not determine the claimant’s arguments concerning a continuing act, post-termination discrimination, or the applicable time limits. Those factual and legal matters were remitted for consideration at the next Preliminary Hearing, together with amendment and reasonable-prospects issues.
5. The remitted matters were to be heard by a different Employment Judge because the original Judge had expressed firm views on time limits.

• Employment Appeal Tribunal: allowed the appeal against paragraph 2 of the order of Employment Judge Owen dated 27 June 2013 and remitted the relevant issues to a different Employment Judge.
• Employment Tribunal: at a Case Management Discussion, accepted Further and Better Particulars in substitution for earlier particulars and struck out specified allegations on absence of pleaded allegations and time-limit grounds.