Tarn v Hughes

An Employment Tribunal may case-manage discrimination proceedings by directing that sample allegations be tried first. It must, however, exercise that power consistently with the overriding objective and only after careful consideration of whether the course will permit a just, proportionate determination.

A claimant cannot be required effectively to abandon properly arguable pleaded claims unless they are struck out under the applicable rules. In discrimination cases, overlapping evidence and the cumulative effect of allegations may require consideration of the whole picture. A direction which forces an unfair choice between relying on allegations as claims or as background, or which produces no real saving of time or cost, is perverse.

The claimant, a former GP partner, brought claims of sex and pregnancy discrimination, harassment and victimisation against her former partners. The parties agreed a list identifying 30 alleged acts, with overlapping evidence.

At a telephone preliminary hearing, the Reading Employment Tribunal listed a six-day merits hearing and ordered the claimant to identify no more than ten recent and serious events for determination. It permitted reliance on other events as background or context, or their pursuit at a later hearing. The Tribunal refused reconsideration.

The claimant appealed the case-management order. The central issue was whether the Tribunal could separate sample allegations for an earlier hearing and whether its order was a fair and proportionate exercise of that power.

1. Appeal allowed. The Employment Tribunal’s order could not stand. The case was to return to the Tribunal at the case-management stage.

2. The Tribunal had a broad power under Rule 29 of Schedule 1 to the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 to manage proceedings in accordance with the overriding objective. It could direct that selected issues be tried first where that would provide for the just determination of the particular case. Properly arguable pleaded claims could not otherwise be restricted; that would potentially deny access to justice and an effective remedy. A different position would arise if a claim were struck out under Rule 37 for having no reasonable prospect of success.

3. The order was not, however, a strike-out. It left the claimant able to rely on unselected allegations as background or to pursue them later. The Tribunal had therefore sought to split allegations into tranches, rather than prevent their prosecution.

4. That distinction did not save the order. The Tribunal had not addressed the relevant practical consequences. If the order required an election between treating unselected matters as claims or only as context, it placed the claimant in an unfair position. If she could both rely on them as background and pursue them later, the Tribunal would still need to hear substantially the same evidence and gain no saving in time or cost.

5. There was an agreed and manageable list of issues. The respondents had not said they could not understand or answer it. Much of the evidence would overlap, and the cumulative effect of all allegations could be material to whether discrimination was proved. The number of findings potentially required was a relevant consideration, but it did not by itself justify fragmented hearings.

6. The Tribunal had made no qualitative assessment of the issues, their overlap, or whether sampling would be consistent with the overriding objective. Its order was, in its terms, one no reasonable Tribunal could have made. Any future direction for a separate sample hearing would require careful engagement with those matters and clear advantages sufficient to secure a just determination.

• Employment Appeal Tribunal: allowed the claimant’s appeal from a case-management decision of the Reading Employment Tribunal.
• Employment Tribunal: at a telephone preliminary hearing on 14 November 2017, directed the claimant to select up to ten events for a six-day merits hearing and allowed other matters to be relied on as background or pursued later. Reconsideration was refused by letter dated 8 February 2018.