Hassan v Barts Health NHS Trust & Anor

An Employment Tribunal's initial consideration under the procedural rules, and a preliminary hearing directed as its consequence, can occur only after acceptance of the response. A direction made before the response is presented is premature.

Where a party seeks transfer because it challenges the impartiality of the tribunal region, that application must be determined before a preliminary hearing on jurisdiction or other substantive issues. Evidence and disclosure applications may properly be refused where they are irrelevant to the confined issues on appeal.

The claimant brought fresh Employment Tribunal proceedings against his former NHS employer. Before the respondent presented its response, the London Central Employment Tribunal directed a preliminary hearing on jurisdiction. The claimant then sought transfer to another region, alleging bias, but the transfer application was listed after the jurisdiction hearing.

At the jurisdiction hearing, the Tribunal struck out part of the claim as barred by res judicata, Henderson v Henderson abuse of process, and/or abuse of process. The claimant appealed the directions and resulting order. He also sought disclosure and admission of further evidence in the Employment Appeal Tribunal.

1. Appeal allowed. Rules 26 and 54 of the Employment Tribunal Rules of Procedure required initial consideration to take place after acceptance of the response. The direction of 26 August 2015, made before the respondent's ET3 was presented, was therefore premature and made without jurisdiction. The ensuing direction for a jurisdictional preliminary hearing could not stand.

2. The transfer application had to be heard first. A challenge to the impartiality of the tribunal region logically required determination before that region considered jurisdictional or other issues. The directions of 26 August and 9 September 2015, and the judgment and order of 2 October 2015, were set aside.

3. The transfer application was remitted to London Central Employment Tribunal for a preliminary hearing. The claimant's allegations of fraud, collusion and bias did not form part of the permitted appeal and disclosed no basis for remission to a different region.

4. Although the respondents did not oppose the appeal, the Appeal Tribunal was required to scrutinise it, consistently with Dozie v Addison Lee plc UKEAT/0328/13. On that scrutiny, the two jurisdictional grounds succeeded.

5. The applications for disclosure under Rule 27(1) of the Employment Appeal Tribunal Rules 1993 and for fresh evidence under paragraph 10.3 of the EAT Practice Direction 2013 were refused. The material was irrelevant to the narrow procedural issues in the appeal, so there was no basis to exercise the Tribunal's powers.

• Employment Appeal Tribunal: Allowed the appeal and set aside the London Central Employment Tribunal's directions of 26 August and 9 September 2015 and its judgment and order of 2 October 2015.
• London Central Employment Tribunal: Directed a jurisdictional preliminary hearing before receipt of the ET3; later struck out part of the claim at the 2 October 2015 hearing and deferred the transfer application.