Succession Group Ltd v Beckwith

An Employment Tribunal’s broad discretion in case management does not permit a process that prevents a party from making submissions on the material at the heart of its application. A specific application to redact identified passages requires consideration of each passage’s relevance to the issues for determination. If a passage is irrelevant, the Tribunal should then consider whether its potentially prejudicial character justifies exclusion.

Material concerning protected disclosures may be relevant to the reason for an alleged dismissal even where no protected-disclosure claim has been brought. An appellate court may therefore set aside a case-management decision where the procedure adopted was one no reasonable Tribunal would have adopted and breached natural justice.

The employer appealed a Regional Employment Judge’s refusal to redact passages from the claimant’s ET1 and from witness statements of the claimant and his wife. The passages included allegations concerning regulatory breaches, bribery and protected disclosures. The claimant had brought an unfair-dismissal claim, but no protected-disclosure claim.

The parties disputed both the effective date and manner of termination. The employer contended that the disputed material was irrelevant and prejudicial. At a telephone hearing, its counsel was not permitted to take the Judge through the identified passages, and the Judge had not read them. The central issue on appeal was whether that process lawfully determined the redaction application.

1. Appeal allowed. The refusal of the redaction application was set aside and the application, with its attached list of passages, was remitted to the Regional Employment Judge for determination.

2. The disputed evidence could not properly be treated as irrelevant merely because the employer contended that employment had already ended. The alleged dismissal date advanced by the claimant remained in issue. Events preceding that alleged dismissal could therefore be relevant.

3. The absence of a protected-disclosure claim did not make evidence of protected disclosures irrelevant. Such disclosures could nevertheless be a reason for dismissal, or play a part in it, when the reason for an alleged dismissal was an issue in the unfair-dismissal claim.

4. The Judge was required to consider each identified paragraph individually. A broad-brush approach was insufficient because the employer had made a specific application and its counsel was prevented from addressing the passages on which the application depended. For any passage found irrelevant, the Tribunal should then consider whether its prejudicial nature warranted exclusion.

5. Although Employment Tribunals have a broad case-management discretion, an appellate court may intervene where no reasonable Tribunal would have exercised the discretion in that way, where relevant matters were omitted or improper matters included, or where natural justice was breached. The refusal to consider the specified passages and to hear submissions upon them was such a breach.

• Employment Appeal Tribunal: Allowed the employer’s appeal from the Regional Employment Judge’s case-management order of 2 December 2016 refusing redaction, and remitted the application for rehearing.
• Employment Tribunal: The Regional Employment Judge dismissed the employer’s redaction application by a judgment sent to the parties on 5 December 2016.