O'Cathail v Transport for London

Case-management decisions concerning consolidation and disclosure lie within a very wide discretion. An appellate court should not interfere merely because it might have adopted a different approach. Intervention requires a real prospect of showing an error of law, perversity or comparable procedural unfairness. Article 6 does not prevent separate hearings where that course permits a fair and efficient determination. A disclosure request may properly be refused where it does not clearly identify the documents sought, the issues to which they relate and why they are necessary for fair disposal. A properly focused application may remain available.

The applicant, a disabled former employee of Transport for London, had brought several Employment Tribunal claims concerning alleged discrimination, his dismissal and subsequent employment applications. The Employment Tribunal consolidated the termination-related claims but directed that the later job-application claims be heard separately. It also made no order for specific disclosure and left privilege issues to the full hearing.

On a rule 3(10) application, Mr Recorder Luba QC allowed the privilege issue to proceed but dismissed the challenges to consolidation and disclosure. The applicant sought permission to appeal to the Court of Appeal, raising alleged errors concerning the Burns/Barke procedure, consolidation, disclosure, bias and Article 6. The central issue was whether there was a real prospect of showing an appealable error in the Employment Appeal Tribunal’s decision.

Permission to appeal was refused. Lord Justice Christopher Clarke held that the proposed appeal had no real prospect of establishing an error of law.

1. Case-management decisions of the Employment Tribunal concerning consolidation and disclosure involved a very wide discretion. The fact that another judge might have chosen a different course was immaterial. The challenge therefore had to satisfy the high threshold identified in Nurani v Merseyside TEC Ltd (1989) IRLR 184, including a real prospect of establishing perversity or equivalent legal error.
2. The Employment Appeal Tribunal was entitled to use the Burns/Barke procedure to obtain clarification from the Employment Judge about disclosure and consolidation. The response explained the earlier decisions and did not amount to advocacy. Even if it had involved advocacy, that would not itself establish an error of law.
3. The decision to hear the termination claims together and the later job-application claims separately was within the Employment Judge’s discretion. The different decision-makers, the confused and disproportionate material, and the risk of further complexity were relevant considerations. Article 6 did not preclude that case-management approach, and the delay had been exacerbated by the unfocused material produced by the applicant.
4. The disclosure request did not clearly identify the documents or classes of documents sought, the issues to which they related, or why they were necessary for fair disposal. The Employment Judge was therefore entitled to make no order while leaving open a properly formulated application. The Employment Appeal Tribunal was likewise entitled to uphold that approach.

The application was refused. A corrected transcript was to be sent to the applicant.

• Court of Appeal (Civil Division) On 1 July 2015, permission to appeal from the Employment Appeal Tribunal was refused: [2015] EWCA Civ 864.
• Employment Appeal Tribunal On 29 August 2014, Mr Recorder Luba QC, exercising the rule 3(10) jurisdiction, allowed the privilege issue to proceed to a full hearing but dismissed the challenges to consolidation and specific disclosure.
• Employment Tribunal In March 2012, Employment Judge Hodgson consolidated the termination-related claims, directed separate treatment of the later job-application claims, made no order for specific disclosure and left privilege to the full Tribunal.