Clarke v Abertawe Bro Morgannwg University Health Board

An Employment Tribunal’s case-management order should be varied only where this is necessary in the interests of justice. Applying the approach in Serco Ltd v Wells [2016] ICR 768, this normally requires a material change of circumstances, a material omission or misstatement, or another substantial reason.

A party’s request that a judge record an unaided recollection before reading agreed contemporaneous notes did not satisfy that threshold. Where notes have been lost, it is not unfair for the tribunal to use available contemporaneous notes to refresh the judge’s memory. A concern that the tribunal may rely on material unsupported by any available record is premature unless that occurs; it may then provide a separate ground of challenge.

The Claimant, an agency nurse, brought a whistleblowing complaint after raising concerns about a patient’s treatment. Her claim was dismissed following a liability hearing in 2012. Her review application was initially dismissed, but a later appeal succeeded because the Employment Tribunal had not considered her extended review application. The matter was remitted to the same Tribunal for reconsideration.

Before that reconsideration, the Tribunal ordered each party to disclose its contemporaneous notes of the liability hearing. The Employment Judge’s notes had been lost. The Tribunal indicated that it would consider whether the notes showed that its recollection of evidence relevant to medical expert evidence was materially incorrect. The Claimant asked the Tribunal first to disclose any surviving notes and to state its recollection of the evidence. The Tribunal refused. The central issue was whether that refusal was an unfair or impermissible exercise of case-management discretion.

1. Appeal dismissed. The Employment Tribunal was entitled to refuse the Claimant’s request for an advance statement of the Judge’s recollection and for further disclosure before the parties complied with the agreed order concerning their notes.

2. Under Rule 29 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, interference with a case-management order must be necessary in the interests of justice. The applicable approach, drawn from Serco Ltd v Wells [2016] ICR 768, requires a material change of circumstances, a material omission or misstatement, or another substantial reason.

3. There was no material change. The parties knew that the Employment Judge’s notes had been lost, that the Tribunal would read the parties’ contemporaneous records, and that the Judge might compare those records with his recollection. Paragraph 12 of the preliminary-hearing reasons had a narrow purpose: it concerned whether a materially incorrect recollection might justify revisiting the refusal of medical expert evidence. It did not announce a reconsideration of the whole case by reference to unrecorded recollection.

4. The proposed procedure was not unfair, nor did it create an appearance of unfairness. In the unusual circumstances created by lost notes, available contemporaneous notes could properly refresh the Judge’s memory. The Tribunal was unlikely to use them to reconstruct unsupported conclusions. If it later relied on material absent from all available notes, it would need to explain that course and any resulting unsupported finding could itself raise an error of law.

5. The prior procedural errors and loss of notes did not establish bias, unfairness, or an error of principle in this case-management decision. The order was a sensible exercise of the Tribunal’s broad discretion.

• Employment Appeal Tribunal: This appeal was dismissed: [2019] UKEAT 0185_18_2301.

• Employment Appeal Tribunal (Soole J): In May 2017, the Claimant’s appeal against the dismissal of her review application was allowed because the extended review application had not been considered. The matter was remitted to the same Employment Tribunal for a fresh hearing of the whole review application.

• Cardiff Employment Tribunal: The Claimant’s whistleblowing complaint was dismissed after the 2012 liability hearing. Her review application was subsequently dismissed by a reserved judgment sent on 4 June 2013.