Monfared v Spire Health Care Ltd

An interim appeal against case-management decisions may properly be dismissed where the underlying employment claim has subsequently been struck out. There is then ordinarily no live claim to which the interim appeals can attach, unless an alleged error is replicated in the strike-out decision.

In any event, an appellate tribunal may reject a Rule 3 application which has no reasonable prospect of success, repeats challenges already resolved, or would disrupt the orderly progress of ongoing tribunal proceedings. Case-management decisions in a lengthy discrimination claim will not be disturbed merely because an interlocutory appeal is pending.

The claimant brought ongoing employment tribunal claims, principally for race and religious discrimination, harassment and victimisation. His appeals challenged the acceptance of the respondent’s response to a second claim and case-management directions, including the refusal to stay proceedings pending earlier appeals.

Before this Rule 3(10) hearing, the Employment Tribunal had struck out both of the claimant’s claims for non-compliance with orders. The central question was whether the interim appeals should be adjourned and, if not, whether they disclosed any reasonable prospect of success.

1. Applications dismissed. The subsequent strike-out of the whole employment tribunal claim was the primary reason not to entertain the interim appeals. Applying Edem v Egg Plc & Anor, there was no claim left to try and no need to determine interlocutory appeals, absent an allegation that the same error infected the strike-out judgment.

2. The appeal concerning the respondent’s ET3 failed on the Employment Judge’s findings. The respondent had not received the ET1 and responded within four days of receiving it. Alternatively, the Employment Judge had acted within her discretion in allowing a short further period for the response. There was no basis to strike out the respondent’s right to defend.

3. There was no perversity in the case-management orders. Nor was there reason to stay a substantial and properly prepared discrimination claim merely because earlier interlocutory appeals were awaiting the sift process. Progressing the claim was consistent with the interests of justice and orderly case management.

4. Independently of the strike-out, the appeals had no reasonable prospect of success. They revisited matters already addressed in the EAT and risked interfering with proceedings arranged for a lengthy final hearing. Those were further grounds for dismissal under Rule 3.

• Employment Appeal Tribunal: the claimant’s Rule 3(10) applications challenging interim employment tribunal orders were dismissed.
• Employment Tribunal: before this hearing, both underlying claims were struck out on 4 June 2014; reasons were awaited.