Pine v Cinven Ltd

An appeal against an earlier case-management order will ordinarily serve no purpose where later proceedings and a final merits decision have overtaken it, and no arguable unfairness in the eventual hearing is shown. An alleged procedural error is ineffective where it had no practical impact on the substantive decision.

A complaint that the tribunal judge should have recused herself from the merits hearing must be pursued in an appeal against that merits decision. It cannot usefully be determined through a separate appeal from an earlier case-management order after the merits appeal has been dismissed.

The Claimant had succeeded in the Employment Tribunal on claims for unfair dismissal and failure to make reasonable adjustments. A remedies hearing was delayed by extensive case management and related appeals.

She appealed an Employment Judge’s case-management order of 17 May 2013. The order required, among other matters, medical-record disclosure, a further medical examination, and steps towards a remedies hearing. The remedies hearing later proceeded and resulted in compensation. A separate appeal from the remedies decision was dismissed before this appeal was determined.

The central issue was whether there remained any basis to challenge the earlier order, including a complaint founded on an error in a Court of Appeal judgment and an assertion of apparent bias.

1. Appeal dismissed. The order challenged was a case-management order made long before the remedies hearing. Subsequent directions, the remedies hearing, and the dismissal of the appeal against the remedies decision had overtaken the challenge.

2. The Court of Appeal judge’s earlier statement that a consent order had relieved the Claimant of the obligation to provide her own medical records was plainly an error. In any event, it did not bind the Employment Tribunal, the Employment Appeal Tribunal, or another court.

3. Even assuming that the medical-record requirement in the unless order ought not to have been made, it caused no practical unfairness. The records were not used at the remedies hearing and were not seen by the Employment Judge. The challenge to that requirement was therefore pointless.

4. The remaining procedural objections disclosed no viable error. The order substantially repeated earlier orders, introduced a timetable to enable the remedies hearing to proceed, and could have been challenged by an application to vary or set it aside before that hearing.

5. A contention that the Employment Judge had lost sight of justice and should have recused herself concerned the subsequent remedies hearing. The proper route was an appeal against the remedies judgment. That appeal had already been finally dismissed, so the point could not sustain this separate appeal.

• Employment Appeal Tribunal: appeal from the Employment Judge’s case-management order of 17 May 2013 dismissed.
• Employment Appeal Tribunal: a separate appeal against the Employment Judge’s remedies decision had previously been dismissed.
• Employment Tribunal: the Claimant succeeded on unfair dismissal and reasonable-adjustment claims, and was later awarded compensation at the remedies hearing.