N Mendy v Motorola Solutions UK Limited & Ors

An Employment Tribunal direction is characterised by its objective effect, not by the judge’s subjective intention. A direction which removes a pleaded claim from the proceedings unless it is reintroduced by amendment finally determines that part of the claim. It is therefore a judgment, and is tantamount to a strike-out where it is made on the pleadings without considering evidence.

Such a determination cannot be revoked as a case-management order. It may instead be reconsidered under the applicable reconsideration power. A pleaded claim must not be struck out at a private preliminary hearing without a reasonable opportunity for the affected party to make representations. Case-management clarification must not inadvertently extinguish a claim.

The claimant, who had been summarily dismissed, brought consolidated Employment Tribunal proceedings. His grounds of complaint expressly alleged indirect race discrimination and identified alleged provisions, criteria or practices.

At a private preliminary hearing, the Employment Tribunal stated that there was no discernible indirect-discrimination claim and required an application to amend if the claimant wished to pursue one. It later purported to revoke that direction under rule 29 after accepting that the pleaded allegation had been overlooked.

The claimant appealed. The central issues were whether indirect discrimination had been pleaded and whether the earlier direction objectively amounted to a strike-out, despite its description as case management.

1. Appeal allowed. The claimant had pleaded an indirect race-discrimination claim. Paragraph 123.2 of the grounds of complaint expressly identified the statutory cause of action, the alleged PCPs, group disadvantage, personal disadvantage and lack of proportional justification. There was no basis for treating that claim as unpleaded: it remained before the Employment Tribunal unless determined or otherwise disposed of.
2. The objective effect of the November 2020 order was decisive. Although the Employment Judge did not intend to strike out an existing claim, the order removed indirect discrimination from the pleaded case and required a successful amendment application before it could proceed. It thereby finally determined that claim. A determination on the pleadings, without evidence, was tantamount to a strike-out and was a judgment rather than a case-management order.
3. The Employment Tribunal had therefore erred by making that determination at a private preliminary hearing and without giving the claimant the reasonable opportunity to make representations required for a strike-out. Those safeguards could not be avoided by describing the ruling as clarification of the issues.
4. Because the impugned ruling was a judgment, its purported revocation under rule 29 was ineffective. Rule 29 permits variation or revocation of case-management orders only. The appropriate potential route to correct the error was reconsideration under rule 70, but that route had not been taken.
5. Employment Tribunals may properly clarify claims at private preliminary hearings. They must, however, take care not to infer a withdrawal or treat inadequate particularisation as abandonment. They may direct further particulars or use the prescribed procedures for a deposit order or strike-out where appropriate.
6. Paragraph 3.5 of schedule B to the November 2020 order was set aside. No remittal or directions concerning the future conduct of the Employment Tribunal proceedings were made.

• Employment Appeal Tribunal: allowed the claimant’s appeal and set aside paragraph 3.5 of schedule B to the November 2020 order: [2022] EAT 47.
• London Central Employment Tribunal: at a private preliminary hearing, directed that there was no discernible indirect-discrimination claim and that an amendment application was required to pursue it. Its later purported revocation of that direction under rule 29 was held ineffective.