L Garcia v Bigbux & Ors

An Employment Tribunal may make a case-management order on its own initiative to consolidate similar claims for a hearing at which strike-out or deposit-order issues may be considered. The order need not itself determine whether any claim should be struck out or made subject to a deposit order.

On appeal, the Employment Appeal Tribunal will interfere with that discretionary order only if the tribunal lacked power, considered an irrelevant matter, failed to consider a relevant matter, or reached a decision no reasonable employment judge could reach. Similar allegations, linked claimant details, prior findings concerning credibility and genuineness, and a risk of double recovery were capable of justifying consolidation. Temporal proximity to a complaint against a different judge did not establish victimisation or real or apparent bias.

The appellant challenged Regional Employment Judge Foxwell’s decision of 25 October 2020 to consolidate three sex-discrimination claims for a hearing at which strike-out issues would be considered. The claims concerned allegedly discriminatory job advertisements and had similarities in their allegations and claimant details.

The Employment Judge’s reasons, sent on 18 November 2020, referred to a shared postal address, an earlier unsuccessful claim in which adverse findings had been made about credibility and genuineness, and a possible risk of double recovery. The appellant alleged legal error, procedural unfairness, lack of evidence, victimisation and bias. At a rule 3(10) hearing, the Employment Appeal Tribunal considered whether the consolidation order disclosed any arguable error of law.

1. The rule 3(10) application was dismissed. There were no reasonable grounds for the appeal.

2. The decision under appeal was a case-management order under rule 29 of the Employment Tribunals Rules of Procedure 2013. The Tribunal had a wide power to manage proceedings, including on its own initiative. Rules 29 and 53 permitted it to bring the claims before the same judge at the same hearing. The order did not decide strike-out under rule 37 or a deposit order under rule 39. It allowed those issues to be considered at a hearing.

3. The Appeal Tribunal’s role in reviewing that discretionary order was limited. It could intervene only if the Employment Judge lacked power, considered irrelevant matters, omitted relevant matters, or made a decision no reasonable Employment Judge could make.

4. The stated reasons were proper grounds for consolidation. The similar applications, the connection between different claimant names and the same address, the earlier findings about credibility and genuineness in a similar claim, and the possible risk of double recovery were all matters the Employment Judge could consider. There was no evidence that an improper consideration motivated the order.

5. The victimisation allegation was unsustainable. Although bringing proceedings is a protected act under section 27 of the Equality Act 2010, proper case management of discrimination proceedings was not a detriment in this context. In any event, temporal proximity between the complaint and the order did not evidence that the protected act caused the decision.

6. There was also no real or apparent bias. A reasonable informed observer could not infer bias merely from the eight-day interval after a complaint concerning a different Employment Judge.

• Employment Appeal Tribunal: the appellant’s rule 3(10) application against the consolidation order was dismissed; the appeal had no reasonable grounds.

• Employment Tribunal: Regional Employment Judge Foxwell ordered on 25 October 2020 that three claims be consolidated for a hearing concerning possible strike-out. Reasons were provided on 18 November 2020.