Patel v The Commissioner of The Police of The Metropolis

A case-management decision cannot stand where it materially proceeds on a demonstrable factual error. A later decision made on apparently the same material may be capable of bearing on the earlier decision under challenge, particularly where discriminatory treatment is alleged. The Employment Tribunal must reconsider relevance, proportionality, disclosure and admissibility on a correct factual basis. Where the original decisions concerning disclosure and evidence were contingent on the same erroneous premise, the appropriate course may be to set aside the whole order and remit those matters for fresh case management.

A Hindu police officer brought Employment Tribunal claims of race and religion or belief discrimination after he was refused a transfer to Brent because of his long association with the Neasden Temple.

In 2019, another Chief Inspector concluded that the earlier rationale no longer applied and that he could apply for a Brent post. The claimant sought to rely on that development and sought disclosure of related documents. Employment Judge Taylor refused disclosure, excluded the claimant's additional material and removed the relevant part of his witness statement.

The appeal concerned whether those rulings were vitiated by the Employment Judge's finding that the claimant had ceased to be the Temple's Deputy Security Manager only after the 2018 decision.

1. Appeal allowed. The Employment Judge's conclusion that there had been a significant change of circumstances between the 2018 and 2019 decisions rested on a clear factual error. The contemporaneous emails showed that the claimant had notified Chief Inspector Allen of his resignation from the Temple security role before the 2018 decision was communicated to him.

2. That error was material to the refusal of disclosure. It formed part of the reasoning that the later decision was insufficiently likely to yield evidence of sufficient relevance and that wider disclosure and evidence would be disproportionate. A demonstrable and material factual error is a valid basis for setting aside a case-management decision.

3. The respondent's contention that the error was academic was rejected. The 2019 decision could be relevant because a different officer had reached a favourable view apparently on the same material. It might therefore cast light on the earlier decision. The material could also assist the Tribunal in determining an allegation of race and religion or belief discrimination, which may present evidential difficulties.

4. The exclusion of the claimant's additional particulars and witness-statement material was expressed to follow from the disclosure ruling. It was therefore appropriate to set aside the whole order of 18 July 2019, notwithstanding the lack of clarity in the notice of appeal about those consequential parts.

5. The Employment Appeal Tribunal did not itself determine the proper scope of disclosure or evidence. Those questions required a fresh assessment of the factual matrix, relevance and proportionality. The matter was remitted to the Employment Tribunal, before a fresh Employment Judge, to give directions concerning evidence and disclosure relating to the April 2019 meeting.

• Employment Appeal Tribunal: allowed the appeal, set aside the Employment Tribunal's order of 18 July 2019, and remitted case-management issues concerning disclosure and evidence to a fresh Employment Judge.
• Central London Employment Tribunal: Employment Judge Taylor refused the claimant's disclosure application, refused permission to rely on additional information, and directed removal of the relevant part of his witness statement. Reasons were issued on 5 September 2019.