T Kostakopoulou v University of Warwick & Ors.

The Employment Appeal Tribunal dismissed the appeal against a series of Employment Tribunal case-management decisions concerning an application for interim relief under section 128 of the Employment Rights Act 1996. The tribunal held that the employment judges had acted within the broad ambit of their discretion when they refused a postponement, proceeded with the interim relief hearing in the claimant's absence under rule 47, and refused to reconsider the earlier decisions under rules 72–73. The court emphasised the statutory requirement in s.128(3) to determine interim relief applications as soon as practicable and s.128(5)’s restriction on postponement absent special circumstances, and found no error of law or perversity in the exercise of the case-management powers in rules 29 and 30.

This appeal concerned narrow procedural challenges to Employment Tribunal case-management decisions arising from an application for interim relief under section 128 of the Employment Rights Act 1996 following the claimant's summary dismissal. The claimant applied for a postponement of an interim relief hearing listed for 3 November 2020; the postponement request was refused by Employment Judge Findlay on 2 November 2020. The hearing proceeded in the claimant's absence on 3 November 2020 before Employment Judge Dean and the interim relief application was refused in a reserved decision dated 17 December 2020. The claimant then applied for reconsideration which was refused on the papers under the reconsideration rules (the EJ Dean Reconsideration Decision).

The EAT summarised the procedural and factual background, including an initial administrative failure to serve the particulars of claim, a period of pandemic-related delay, two previous ET claims, and the claimant's late reliance on professional representation after seeing the respondent's ET3. The claimant challenged (i) the decision refusing a postponement (invoking rules 29 and 30 and s.128 ERA 1996), (ii) the decision to proceed with the hearing in her absence under rule 47, and (iii) the refusal to reconsider the decisions under rules 72–73.

The court framed the issues as whether the Employment Judges had misapplied the statutory provisions governing interim relief (notably s.128(2)–(5)) or failed properly to exercise their wide case-management discretion. The EAT held that the tribunal was entitled to prioritise expedition under s.128(3), that the statutory regime for interim relief disapplied the usual 14-day notice requirement and constrained postponement (s.128(5)), and that the EJ Findlay Decision and the EJ Dean Decision were within the generous ambit of reasonable case-management choices. The judge found no change of circumstances or special circumstances warranting variation of the earlier order, that EJ Dean properly considered the claimant's correspondence before deciding to proceed in the claimant's absence, and that the reconsideration application was rightly refused on the papers as there was no reasonable prospect of varying the decisions. The EAT therefore dismissed the appeal.

The appeal was dismissed. The Employment Appeal Tribunal held that the Employment Tribunal had acted within its broad case-management discretion in refusing to postpone the interim relief hearing (s.128 ERA 1996 and rule 29/30), in proceeding in the claimant's absence after considering available correspondence (rule 47), and in refusing reconsideration where there was no reasonable prospect of varying earlier decisions (rules 72–73). The statutory urgency of interim relief and the requirement for 'special circumstances' to justify postponement under s.128(5) meant the judges' decisions were not perverse or unlawful.

At first instance the decisions under challenge were made by Employment Judge Findlay (refusal to postpone) and Employment Judge Dean (interim relief hearing and refusal of reconsideration). Initial appeals were sifted and most grounds were rejected by President Choudhury J on 6 December 2021. On a rule 3(10) oral renewal hearing before HHJ Beard on 1 March 2022 some grounds were permitted to proceed to a full hearing. The current appeal was heard by the Employment Appeal Tribunal on 6 May 2022 and dismissed.