Limiting claims in the tribunal

The Employment Appeal Tribunal (EAT) upheld an appeal from the Employee against a decision made at a preliminary hearing of the Employment Tribunal. The Judge ordered the Claimant to provide a sample of the ten most serious and recent allegations to pursue. The Tribunal Judge commented that the Claimant could rely on the other events as background or context to the ten allegations the Claimant selected. The tribunal ordered that if the Claimant wanted to pursue claims for the allegations, which were not in the top ten, she would have to do so at a later hearing. In allowing the Claimant’s appeal the EAT Judge commented ‘There was no indication that the ET had considered the practical consequences of the fragmented approach it had adopted or how this could be said to be consistent with the overriding objective in this case; it had failed to have regard to relevant considerations and, on its face, its Order was perverse’. Tarn v Hughes & Ors UKEAT/0064/18/DM

The Claimant was employed with the Respondent surgery as a GP and one of the partners of the Respondent surgery from February 2013 until 31 December 2017. Around January 2016 the Claimant informed the Respondent she was pregnant and alleged that after she announced her pregnancy, she was subjected to a number of discriminatory acts by the Respondent, which lead to the Claimant eventually resigning from the Respondent partnership on 21 July 2017.

The Claimant issued various claims in the Employment Tribunal against the Respondent to include sex and pregnancy discrimination, harassment and victimisation. 30 separate acts were identified upon which the Claimant was making a complaint. The Tribunal ordered the Claimant to provide to the Respondent, ‘In concise and clear terms, the most recent and serious 10 (maximum) events relied upon as giving rise to the above complaints and on which the Tribunal is required to make findings of fact and determinations. These must be individual distinct events, not lists of events, and must be taken from the contents of the ET1 claim form. The Claimant may rely upon more than one head of claim for each event. The Claimant is not prevented from relying upon other events as background or context to the 10 chosen events. Alternatively the other matters may be pursued at a later hearing after the currently listed hearing has been concluded’. The Claimant appealed against the Tribunal limiting her claims. and the EAT upheld her appeal, the Judge commenting that ‘this leads into the real problem with attempts to case manage discrimination claims in this way: in many such cases, it is necessary to consider the entire picture before any conclusion can be drawn as to whether, or not, there has been unlawful discrimination in respect of any particular allegation. There is an obvious temptation in directing the complainant to select her ten best points; no doubt, hoping that the determination of those matters will enable the parties to reach agreement in respect of the allegations that remain. In many discrimination cases, however, this will not be consistent with the just determination of the claims made: the ET will have to consider the complete picture if it is to fairly answer the question whether there has or has not been unlawful discrimination on the relevant protected grounds’. The EAT Judge remitted the case back to the Employment Tribunal.

All is not lost for employers with the outcome of this case. The outcome does not mean the green light for claimants and the Employment Tribunal letting all the Claimants claims through. The Tribunal has the power to strike out claims which have no reasonable prospects of success or to order employees to pay a deposit where claims appear to have little chance of succeeding.