Santander UK Plc v Valverde

An Employment Tribunal has a broad but judicial discretion whether to direct a preliminary hearing on limitation. It must apply the overriding objective and make a practical, provisional assessment of whether a separate hearing is likely to save overall time, cost and tribunal resources.

A preliminary hearing is usually unsuitable where limitation and merits substantially overlap. In discrimination claims, whether conduct extended over a period ordinarily requires findings on all the evidence. Earlier acts may also remain evidentially relevant even if they are time-barred. A case-management judge may assess the pleaded case in deciding whether to list a preliminary hearing without finally determining jurisdiction or binding the tribunal at the full hearing.

The claimant, a senior employee, brought claims of sex discrimination, equal pay and victimisation. Santander contended that a number of allegations were out of time and asked the Employment Tribunal to list a preliminary hearing on limitation.

Employment Judge Goodman refused that request and listed the claims for a full hearing. She considered that the pleaded allegations might disclose a discriminatory state of affairs and that a separate limitation hearing might not shorten the final hearing.

Santander appealed, contending that the Judge had impermissibly reached binding conclusions about the pleadings and had pre-empted the jurisdictional issues. The central question was whether the refusal to direct a preliminary hearing disclosed an error of law.

1. Appeal dismissed. The Employment Judge made a discretionary case-management decision. Her task was to decide whether a separate preliminary hearing on limitation would be proportionate and likely to produce an overall saving of time, expense and tribunal resources. She was not deciding the limitation issues themselves.

2. The discretion to direct a preliminary hearing is unfettered but must be exercised judicially, consistently with the overriding objective and the relevant Rules. A separate hearing may be appropriate where limitation is discrete and may dispose of a claim. It may be inappropriate where it would duplicate evidence or add cost and delay.

3. In a discrimination claim, whether there is conduct extending over a period, or a continuing discriminatory state of affairs, commonly requires the tribunal to hear the evidence and assess the alleged acts in their full context. The same evidence may be relevant both to limitation and to liability. Earlier acts may remain evidentially relevant even if they cannot themselves found a timely complaint.

4. The Judge did not make conclusive findings about the scope of the pleadings, a continuing state of affairs, or a just and equitable extension. Her use of tentative language was a permissible provisional assessment for case-management purposes. Her decision did not bind a later tribunal considering limitation or the pleadings at the full hearing.

5. There was ample basis for listing one full hearing: some claims were plainly in time, the pleadings alleged a continuing discriminatory culture and course of conduct, and a separate hearing was unlikely materially to shorten the eventual trial.

6. The appeal was misconceived. Exercising the power under Rule 34A, the Appeal Tribunal ordered Santander to pay the claimant £6,000 costs.

• Employment Appeal Tribunal: Appeal from Employment Judge Goodman’s case-management decision at London Central, reasons dated 12 June 2015. The appeal was dismissed and the decision to proceed to one full hearing was upheld.