Solomon Ijegede v Signature Senior Lifestyle Operations Limited

An Employment Tribunal should not narrow claims previously identified through case management without accurately considering the pleadings, documents incorporated by reference, and the basis on which the issues were settled. Under rule 29 of the Employment Tribunals Rules of Procedure 2013, variation of an earlier order is not a straitjacket, but must be necessary and in the interests of justice. It cannot rest simply on disagreement with the earlier order.

In a discrimination claim concerning disciplinary treatment, the question is not exhausted by whether there was a prima facie case against the claimant. The Tribunal must address the pleaded case of differential treatment, including identified comparators and relevant evidence about comparable alleged misconduct.

The claimant appealed against an Employment Tribunal decision dismissing claims of direct race discrimination, harassment and victimisation.

At earlier preliminary hearings the parties had agreed a list of issues. It included allegations that the claimant had been singled out for disciplinary action while named white colleagues had not been disciplined, and allegations of bullying. The claimant had also sent a grievance document to the Tribunal with, and expressly cross-referred to in, his claim form. The Tribunal office had not served that document on the respondent.

At the final hearing, the Employment Tribunal treated aspects of the agreed list as background or unpleaded matters. It considered a hypothetical comparator and focused on whether there was a prima facie disciplinary case. The central issue was whether that approach wrongly narrowed the scope of the claims.

1. Appeal allowed. The Employment Tribunal’s decision was unsafe and was set aside. The case was remitted for a complete rehearing before a freshly constituted Employment Tribunal.

2. Rule 29 of the Employment Tribunals Rules of Procedure 2013 does not prevent all alteration of earlier case-management orders. As explained in Serco Ltd v Wells [2016] ICR 768, variation is subject to important qualifications. It must be necessary and in the interests of justice, rather than reflecting a later Tribunal’s disagreement with an earlier order.

3. Mervyn v BW Controls [2020] EWCA Civ 393 was consistent with that approach. It concerns good practice in identifying the issues, but did not address whether the issues in that case had been incorporated in orders. The Employment Tribunal’s power to check the scope of the claim did not cure its failure to understand how this claim had been framed and developed at the preliminary hearings.

4. The claimant had intended the grievance document to form part of his claim form, which expressly referred to it. It contained the allegation that he had been singled out. The earlier agreed list had particularised that allegation by naming comparators. The Tribunal did not adequately explain whether it treated the grievance document as part of the claim, why it regarded the agreed particulars as mere background, or why the claimant had given informed consent to abandon them.

5. The Tribunal therefore wrongly substituted a hypothetical comparator for the identified comparators. It also confined its analysis to whether the claimant had a prima facie disciplinary case to answer, rather than addressing whether he alone was subjected to disciplinary action despite comparable medication-related failures by others. It likewise omitted agreed bullying allegations. The overlap between the issues made it unsafe to preserve any findings. Evidence from the earlier hearing could be used before the fresh Tribunal where its record was undisputed.

• Employment Appeal Tribunal: appeal allowed in [2022] EAT 4; the Employment Tribunal decision was set aside and remitted to a fresh Tribunal.
• Employment Tribunal, East London: dismissed the claimant’s claims of direct race discrimination, harassment and victimisation in a decision promulgated on 6 December 2019.