S Khakimov v Nikko Asset Management Europe Limited

The Employment Appeal Tribunal dismissed all five grounds of appeal challenging a series of Employment Tribunal decisions about interim relief, costs and case management. The claimant, a person with a diagnosed functional neurological disorder, argued the Employment Judges had failed to make adequate adjustments for his disability. The EAT held that the Employment Judges made permissible discretionary decisions: they lawfully declined to allow an amendment to add a s.103A ERA automatic unfair dismissal complaint (having correctly applied the Selkent factors and treated the witness statement date as the date of any implicit application); they properly applied rule 76 ET Rules when finding unreasonable conduct for costs purposes; they permissibly assessed ability to pay under rule 84 and fixed a proportionate costs sum; they acted within their case‑management discretion in refusing very wide disclosure or access to the employer’s e‑mail system; and they correctly limited the final list of issues to matters properly pleaded or within further and better particulars.

Background and parties

The claimant was employed by the respondent from 2013 until dismissal in January 2021. He brought multiple ET claims alleging race and disability discrimination, victimisation and detriments for making protected disclosures under section 47B ERA 1996; after dismissal he brought a further claim including unfair dismissal allegations invoking section 103A ERA 1996. The claimant disclosed a diagnosis of functional neurological disorder and presented as a litigant in person for much of the pre‑hearing process.

Procedural posture and relief sought

• The appeal to the EAT challenged four Employment Tribunal decisions made at different preliminary hearings and interlocutory rulings: (i) refusal to permit amendment to plead an automatic unfair dismissal under s.103A at an interim relief hearing (EJ Stout, 26 April 2021); (ii) finding of unreasonable conduct and an interim costs liability under rule 76 (same hearing, reasons 28 April 2021); (iii) determination of the quantum of costs and consideration of the claimant’s means under rule 84 (reasons 14 September 2021); (iv) refusal of orders for access to the claimant’s employer e‑mail inbox and calendar and of specific, wide ranging disclosure (EJ Nicolle and EJ Spencer, May–November 2021); and (v) exclusion of additional alleged protected disclosures and restriction of the issues list for the final hearing (EJ Spencer, 4 October 2021).

Issues framed by the court

• Whether an implicit application to amend should be dated 23 March 2021 (e‑mail) rather than 21 April 2021 (witness statement) for time‑limit and amendment exercise purposes.
• Whether the ET erred in law in finding the claimant had acted unreasonably under rule 76 without cross‑examination and without sufficient adjustment for disability.
• Whether the ET erred in assessing ability to pay and in ordering a £7,500 costs award under rule 84.
• Whether the ET had power or should have ordered access to the employer’s e‑mail system and whether refusal of disclosure over some six years was unlawful or unfair given the claimant’s disability.
• Whether the ET improperly restricted the final list of issues by excluding additional alleged protected disclosures and matters in the claimant’s further and better particulars.

Court’s reasoning and disposition

• The EAT found no error in the employment judge treating the witness statement date (21 April 2021) as the date of any implicit amendment application; the 23 March e‑mail did not clearly constitute an application and the judge had taken steps favourable to the claimant as a litigant in person.
• On costs, the EAT held the judge had correctly applied rule 76 and was not required to cross‑examine before finding unreasonable conduct; there was no duty to spell out every possible disability‑related explanation for the claimant’s change of position.
• On the quantum of costs, the EAT confirmed a tribunal may take a realistic prospect of future ability to pay into account under rule 84 and that the judge’s modest award of £7,500 was within lawful discretion and properly proportionate to the conduct and stage of proceedings.
• The EAT held there was limited or no power in the ET Rules to order mandatory access to an employer’s computer system and that the refusal of very wide disclosure fell within the generous ambit of case‑management discretion; the employment judges had taken proper account of the issues and the claimant’s pleaded case.
• The EAT rejected the submission that the judge should have included unpleaded new disclosures or otherwise overhauled the list of issues; amendments were necessary for those items and later applications were considered and refused.

Appeal dismissed. The Employment Appeal Tribunal concluded that the Employment Judges acted within their discretion and applied the correct legal principles on amendment, costs and case management, having made reasonable adjustments for the claimant's disability but not being required to accept every possible construction of the claimant's materials or to conduct mini‑trials on credibility at interlocutory stages.

Appeal to the Employment Appeal Tribunal against multiple Employment Tribunal interlocutory and case management decisions (interim relief hearing 26 April 2021; costs decision 14 September 2021; disclosure and case management decisions 27 May–25 November 2021). The EAT ([2023] EAT 38) dismissed all grounds of appeal.