E v X & Anor

An Employment Tribunal of equivalent jurisdiction may not revisit an earlier case-management order merely because it takes a different view of its utility. Under Rule 29, interference must be necessary in the interests of justice. It requires a material change of circumstances, a material omission or mistreatment in the original order, or another substantial reason.

On a time-point strike-out application, the claimant must show a prima facie or reasonably arguable basis for treating the allegations as linked continuing conduct. The tribunal may need oral evidence and may assess the claimant’s case critically. A definitive limitation decision on disputed facts requires evidence and findings. A later authority which restates established caution does not, without more, constitute a material change.

X brought claims of harassment and victimisation under the Equality Act 2010. Employment Judge Ryan directed a preliminary hearing to determine whether the harassment allegations formed conduct extending over a period with the victimisation allegations and, if not, whether time should be extended.

At the listed hearing, Employment Judge Sherratt declined to determine those issues. He considered that the harassment evidence would in any event be required at the merits hearing and that a preliminary hearing would save no time. L and E appealed.

The central issues were whether Judge Sherratt had power to depart from Judge Ryan’s unappealed order, and whether the later decision in Caterham or X’s witness statement supplied a material change of circumstances.

1. Appeals allowed. Employment Judge Sherratt’s orders were set aside and Employment Judge Ryan’s orders restored.

2. The pleaded case defined the issues. It alleged harassment by Z and E, but did not allege that either perpetrated, instigated or directed the later victimisation. A witness statement could not extend the pleaded case in that way. Accordingly, the continuing-act issue concerning victimisation was potentially engaged against L, but not Z or E; against the latter, only the just and equitable extension issue remained.

3. The court qualified Caterham. A time-point strike-out application can sometimes be determined on the pleaded facts alone, but that approach is not mandatory. Consistently with Lyfar, oral evidence may be advisable. The claimant’s case may be assessed critically, including for inherent implausibility. By contrast, a definitive limitation ruling on disputed facts requires evidence, findings of fact and application of the law.

4. A judge of equivalent jurisdiction could interfere with Judge Ryan’s case-management order only under Rule 29 of the Employment Tribunal Rules of Procedure 2013, where necessary in the interests of justice. That required a material change of circumstances, material omission or mistreatment, or another substantial reason. The question was jurisdictional and objective, not discretionary.

5. Neither Caterham nor X’s witness statement was a material change. Caterham restated established cautions about preliminary time-point decisions and did not preclude the hearing Judge Ryan had directed. The witness statement was prepared under Judge Ryan’s directions and did not change the nature of X’s case. Judge Sherratt therefore lacked jurisdiction to revisit the earlier order. His view about possible saving of hearing time was immaterial.

6. The preliminary hearing was remitted to a fresh Employment Judge. It should be listed promptly if possible; otherwise the full merits hearing may be vacated and relisted.

• Employment Appeal Tribunal: Appeals by L and E allowed. The EAT set aside Employment Judge Sherratt’s order declining to determine the preliminary issues and restored Employment Judge Ryan’s earlier case-management order.
• Employment Tribunal: Employment Judge Sherratt, by an order sent on 9 December 2019, declined to determine at a preliminary hearing whether the harassment complaints were in time.
• Employment Tribunal: Employment Judge Ryan had directed a preliminary hearing on the continuing-conduct and just-and-equitable extension issues.