Oyesanya v The Pennine Acute Hospitals NHS Trust

An Employment Tribunal has a wide discretion in case management. On an application to introduce further witness evidence, it must fairly balance prejudice to both parties and consider whether a fair hearing remains possible.

An appellate tribunal will not interfere merely because the Employment Judge did not use particular words or expressly address every point. Reasons must be read as a whole, including incorporated earlier reasons. They are sufficient where they show that the material considerations, including procedural history, delay, compliance with orders and the overriding objective, were taken into account.

The Claimant appealed against Employment Judge Ryan's case-management refusal to permit a supplementary witness statement. His existing statement had been served on the final day allowed by an Unless Order in long-running proceedings. It did not address a number of pleaded allegations.

The Employment Judge found that a further statement would prejudice the Respondent, because it could be tailored after the Claimant had seen the Respondent's evidence, and would add delay. A later tribunal also refused a renewed application for a supplemental statement. The central issue was whether the original refusal failed to consider the Claimant's prejudice and whether a fair trial remained possible.

1. Appeal dismissed. The Employment Judge made no error of law in refusing permission for a further witness statement.

2. The decision was a case-management decision within the Employment Tribunal's exceptionally wide discretion. The Judge was required to balance the prejudice to the Claimant against that to the Respondent and to consider whether a fair hearing remained possible for both parties.

3. The Judge's reasons showed that he had the Claimant's prejudice firmly in mind. The Claimant had failed, through his own fault, to provide evidence for some claims despite an Unless Order and substantial time since commencing the proceedings. The Judge was also entitled to give weight to the risk that a new statement, prepared after disclosure of the Respondent's witness evidence, could be tailored to it, and to the need to avoid further delay.

4. Reasons were to be read together with the earlier reasons incorporated by reference. The absence of the express phrase “fair hearing” did not establish that the issue had been overlooked. Read as a whole, the reasons demonstrated that the Judge had considered the material fairness issues, including the procedural history and the overriding objective.

5. The Tribunal therefore declined to interfere with the refusal.

• Employment Appeal Tribunal: HHJ Barklem dismissed the Claimant's appeal against the case-management refusal.
• Employment Appeal Tribunal: Langstaff J had rejected as wholly without merit an appeal from a later refusal by Employment Judge Horne to permit a supplemental witness statement.
• Employment Tribunal: Employment Judge Horne refused the renewed application to rely on a supplemental statement.
• Employment Tribunal: Employment Judge Ryan refused permission to serve a further witness statement. That decision was the subject of this appeal.