Alukpe v South Thames College Corporation & Ors

An appellate tribunal should ordinarily respect an Employment Judge’s preliminary decisions in a complex case. Intervention is warranted where there is a patent error of law, but not merely because another judge might have taken a different view. The overriding objective permits proportionate case management and gives the Employment Judge considerable latitude in resolving discrete preliminary issues.

A contractual claim outstanding when employment ends falls within the tribunal’s extended contractual jurisdiction if the conditions in article 3(c) of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 are met. A strike-out for no reasonable prospect of success, and a just and equitable extension of time in a victimisation claim, may stand where they were permissible exercises of the Employment Judge’s judgment in the context of the case as a whole.

The claimant, a former lecturer, brought four Employment Tribunal claims against the College Corporation and individuals. They raised contractual, discrimination, victimisation, whistleblowing, wage, human-rights and unfair-dismissal issues. The claims and sub-claims were reduced to an agreed 24-page list of issues.

At a pre-hearing review, the Employment Judge made preliminary rulings, including rulings on contractual jurisdiction, strike-out of a reasonable-adjustments claim and parts of the victimisation claim, and extensions of time for other victimisation allegations. The claimant appealed adverse rulings. The College Corporation cross-appealed the extensions of time.

The central issue was the extent to which the Appeal Tribunal should interfere with preliminary determinations made to manage an exceptionally complex employment case.

1. Appeal allowed in part. The Employment Judge made a patent error of law in holding that the Tribunal lacked jurisdiction over the claimant’s three outstanding contractual claims. Those claims were outstanding at termination and satisfied article 3(c) of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994. They were therefore reinstated for determination.
2. The Appeal Tribunal otherwise declined to interfere with the Employment Judge’s preliminary decisions. In a complex and barely manageable case, an Employment Judge who must ultimately try the claim has a better understanding of its proper management than an appellate tribunal. Subject to a patent legal error, considerable latitude should be given to preliminary judgments and discretionary decisions. This approach furthered the proportionality requirement in rule 2 of the Employment Tribunals Rules of Procedure.
3. The strike-out of the reasonable-adjustments claim was upheld. Although it was arguable that the claimant’s particulars implicitly identified a practice of refusing legal representation at grievance and disciplinary hearings, the Employment Judge was entitled to conclude that the claim had no reasonable prospect of success because he had not adequately identified the relevant provision, criterion or practice or the substantial disadvantage relied upon under section 20 of the Equality Act 2010.
4. The strike-outs of two victimisation allegations were also upheld. The claimant had not identified a protected act, pleaded the allegations as victimisation, or connected a detriment to a protected act. Those deficiencies entitled the Employment Judge to find no reasonable prospect of success.
5. The cross-appeal was dismissed. The just and equitable discretion to extend time for the remaining victimisation allegations was broad. Given the limited significance of those allegations within the wider litigation, appellate interference would not advance the overriding objective.

The appeal was allowed on the contractual-jurisdiction issue only; the remainder of the appeal and the cross-appeal were dismissed.

• Employment Appeal Tribunal: Allowed the claimant’s appeal only on contractual jurisdiction. It dismissed the remaining grounds and the College Corporation’s cross-appeal.
• Employment Tribunal: Following a pre-hearing review on 10 and 11 December 2012, issued preliminary rulings on 15 January 2013. No citation was stated in the judgment.