Commerzbank AG v J Rajput

Where an appeal is allowed and successful discrimination and harassment claims are remitted for a fresh hearing before a freshly constituted tribunal, the scope of the remission depends on the appellate judgment and order. A fresh hearing will generally require the remitted tribunal to determine the remitted claims afresh, without being bound by the original tribunal’s factual findings, unless a limitation is made clear.

The scope of remission is a fundamental case-management matter. It should ordinarily be resolved before the final hearing so that the parties can prepare their evidence, witnesses and hearing bundle. Refusing a preliminary hearing on that issue may fall outside the range of reasonable case-management decisions.

The claimant brought claims of sex discrimination, sex harassment and maternity discrimination against her employer. The original Employment Tribunal upheld some of the sex discrimination and harassment claims and the maternity discrimination claim.

On an earlier appeal, the Employment Appeal Tribunal allowed the employer’s appeal concerning the successful sex discrimination and harassment claims because the original tribunal had relied on stereotypical assumptions which had not been put to the employer or its witnesses. Those claims were remitted for a fresh hearing before a differently constituted tribunal. The maternity discrimination appeal was dismissed.

Before the remitted hearing, Employment Judge Hodgson refused the employer’s application for a preliminary hearing to determine which findings from the original decision remained binding. The central issue was the proper scope and procedural management of the remission.

1. Appeal allowed. The Employment Judge erred in refusing to list a preliminary hearing to determine the effect of the earlier remission. The issue was fundamental because it defined the case to be tried and directly affected disclosure, witness evidence, witness attendance, statements and the hearing bundle.

2. The earlier order allowed the appeal in respect of those direct sex discrimination and harassment claims which had succeeded below, and remitted those claims for a fresh hearing. It did not confine the remission to the drawing of discriminatory inferences or to stereotypical assumptions. The words “to the extent that they succeeded below” distinguished the successful claims from claims which had failed; they did not preserve factual findings within the successful claims.

3. A direction for a fresh hearing does not invariably require every issue to be reheard. Its effect depends on the appellate judgment and order. Here, however, the need for a fresh hearing before a freshly constituted tribunal, following findings that the original tribunal had reached strong adverse conclusions without affording a fair opportunity to meet the case, required the remitted tribunal to start afresh on the allowed discrimination and harassment claims.

4. Accordingly, the remitted tribunal was not bound by any factual findings of the original tribunal relating to claims in respect of which the appeal had been allowed. Findings relating to the maternity discrimination claim, whose appeal had been dismissed, and findings dismissing the other discrimination and harassment claims remained binding.

5. The determination of the scope of remission was a case-management matter capable of determination by an Employment Judge at a preliminary hearing. It was not a preliminary issue determining liability. The judge’s contrary approach, and his proposal to defer the question until the first day of the final hearing, failed to take account of material considerations and fell outside the generous ambit of reasonable disagreement.

6. The listed hearing was vacated. A preliminary case-management hearing was directed to give directions for the full rehearing of the remitted claims. The EAT also considered that the matter should not return to Employment Judge Hodgson because of the conflicting and firm views he had previously expressed as to the remission’s scope.

• Employment Appeal Tribunal: In the earlier appeal, the employer’s appeal against the successful direct sex discrimination and sex harassment claims was allowed and those claims were remitted for a fresh hearing before a differently constituted tribunal. The appeal concerning maternity discrimination was dismissed: UKEATPA/0240/19/RN.
• Court of Appeal: The claimant’s application for permission to appeal the earlier EAT judgment was dismissed in September 2019.
• Employment Tribunal: Employment Judge Hodgson refused to list a preliminary hearing to determine which original factual findings bound the remitted tribunal. This EAT allowed the employer’s appeal against that case-management decision.