Tarn v Hughes

(1) The appeal is allowed. The Employment Tribunal's order requiring the claimant to identify a maximum of ten events for determination was fatally flawed in the terms made. (2) The ET has broad case management powers under the procedural rules and may, in principle, direct that a sample of complaints be tried first. Such a power is available only sparingly and requires careful consideration of the advantages and disadvantages set out in prior guidance (including the points in UKEAT/0417/10 (Gillespie) at paragraph 26). (3) The ET cannot, absent a finding that particular allegations have no reasonable prospect of success, effectively strike out parts of a pleaded claim by forcing the claimant to choose which pleaded complaints to pursue at the final hearing (see the reasoning in UKEAT/0237/11 (McKinson)). The order here did not amount to an express striking-out, but its practical effect risked denying a fair determination. (4) Before directing a sample or a split hearing the tribunal must qualitatively assess the pleaded issues. It must consider the degree of evidential overlap, the risk of artificial fragmentation, the impact on remedy, and whether any time or cost saving would be real rather than illusory (see paras [26], [28] and [33]–[39]). (5) The ET's order failed to demonstrate that it had engaged with these relevant considerations. It did not show a proper appraisal of the agreed list of issues, the likely overlap of evidence, or the unfair election the order imposed. The order was therefore perverse and could not stand. (6) The matter is remitted to the Employment Tribunal for further case management in accordance with the overriding objective and the guidance in this judgment.