G FRANCE v MAHAMMAD ZIAULLAH ZAHI KHAN & OTHERS

An Employment Tribunal must determine fresh case-management applications by reference to the material and issues actually before it. A decision made without the applications and the relevant reconsideration application failed to take account of matters which had to be considered.

Reasons for a case-management order may be brief under Employment Tribunal (Consolidation and Rules of Procedure) Regulations 2013, but they must identify the applications decided and give an intelligible basis for the outcome. An earlier refusal of a different application, made before material developments, did not answer later applications.

The claimant had unsuccessfully brought discrimination claims. The Employment Tribunal made a costs order against her. She sought reconsideration and, in support of that application, made requests for information, disclosure, inspection, third-party disclosure and witness orders concerning the respondents’ conduct of the litigation.

Employment Judge Sage refused the requests by letter of 20 August 2019, stating that the information was irrelevant to reconsideration. The claimant appealed. The central issue was whether that decision had failed to consider relevant material and whether the brief reasons were adequate.

1. Appeal allowed. Employment Judge Sage’s decision was set aside and the claimant’s applications of 22 March and 20 June 2018 were remitted to the Employment Tribunal.

2. The Judge had not been provided with either the claimant’s reconsideration application or her March and June 2018 applications. Those documents were necessary to decide whether the five applications were relevant to reconsideration and whether circumstances had materially changed since the earlier decision of 27 January 2016. The failure to consider them was an error of law.

3. The 20 August 2019 letter relied on the earlier refusal of an information request. That was not an answer to the fresh applications. The earlier decision pre-dated both the costs decision and the reconsideration application. It also proceeded on an expectation about the basis of the costs application which had proved erroneous. Four of the five later applications had not existed when the earlier decision was made.

4. Under rule 62 of the Employment Tribunal (Consolidation and Rules of Procedure) Regulations 2013, reasons for a case-management decision may be short, but must enable the parties to understand the outcome. The letter did not address four applications, and gave no reasoning for the conclusion that the information request was irrelevant. It therefore failed to give adequate reasons, consistently with Neary and the applicable, more limited case-management aspect of Meek.

5. The EAT could not grant the applications itself. Substitution is permissible only where the tribunal’s conclusion was unarguably right or only one lawful result was available. The applications were unusual and their merits required tribunal determination. They were remitted to the London South Employment Tribunal, but not to Employment Judge Sage or Employment Judge Martin.

• Employment Appeal Tribunal: allowed the appeal from Employment Judge Sage’s 20 August 2019 case-management decision, set it aside, and remitted the five applications.

• Employment Tribunal, London South: Employment Judge Sage refused the claimant’s requests for information and related orders on 20 August 2019.

• Employment Appeal Tribunal: following an earlier appeal by the claimant, the refusal of her reconsideration application was set aside by consent and remitted for hearing before a differently constituted Employment Tribunal (Slade J, 13 March 2018).

• Employment Tribunal, London South: made a costs order against the claimant by a reserved judgment promulgated on 25 April 2016.