X v MY

On an application to stay or continue a stay of Employment Tribunal proceedings, the starting point is that a claimant is entitled to determination without delay. The respondent seeking a stay must establish a good reason, including a real risk of prejudice, to displace that ordinary course.

A tribunal must apply that starting point when balancing prejudice. A neutral balance, or one which places the practical burden on the claimant to justify lifting the stay, is an error of approach. Where the balance is finely drawn, that error may render the decision unsafe. Separate unconsolidated claims require separate consideration.

Two serving police officers brought separate Employment Tribunal claims. X alleged detriments for protected disclosures, while M alleged race discrimination. Their claims were not consolidated.

The respondent obtained a stay pending an IPCC investigation and possible consequential misconduct proceedings. Following repeated delay in that investigation, the claimants sought to lift the stay. The London Central Employment Tribunal refused and continued it until 28 February 2018.

The claimants appealed, principally contending that the Tribunal had failed to start from their entitlement to litigate without delay, had overstated the respondent's prejudice, and had failed properly to address prejudice to X and the separate nature of M's claim.

1. Appeal allowed. The continuation of the stay was unsafe and the issue was remitted to the Employment Tribunal for fresh determination.

2. The Tribunal had to begin with the presumption that the claimants were entitled to have their claims litigated and determined without delay. The respondent bore the burden of showing a good reason to displace that normal course, as stated in [2014] 1 WLR 285. Although a stay decision is a discretionary case-management decision, an appeal lies where the Tribunal adopts an erroneous legal approach.

3. The Tribunal's reasons did not show that it had applied that presumption. Its conclusion was expressed as a neutral balance of prejudice, while its observation that the potential impact was not conclusive appeared to place a burden on the claimants to justify lifting the stay. Since the Tribunal described the issue as finely balanced, the error could have affected the result.

4. The EAT rejected several challenges to the Tribunal's assessment of overlap and potential prejudice. The Tribunal had considered the number of officers still serving and the IPCC terms of reference. Its reference to the public interest identified in Ashurst did not improperly equate that case with the present proceedings.

5. Further concerns reinforced the need for reconsideration. The claims had not been consolidated, so the Tribunal needed to decide continuation of the stay separately in each case. It also wrongly treated X's evidence of stress, sickness absence and counselling as unsupported by medical evidence. Those matters did not dictate that the stay be lifted, but indicated an approach that may have placed an unwarranted burden on the claimants.

6. As no single outcome was inevitable and the parties had not agreed that the EAT should decide the application itself, the proper order was remittal for an expedited fresh decision.

• Employment Appeal Tribunal: allowed the claimants' appeal and remitted the continuation of the stay for fresh consideration.
• London Central Employment Tribunal: on 7 July 2017, continued the stay of the claims until 28 February 2018.