Appeal No. UKEAT/0237/11/JOJ
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At
the Tribunal
On
8 August 2011
Before
HIS
HONOUR JUDGE RICHARDSON
MR A HARRIS
MR J R RIVERS
MR
J McKINSON APPELLANT
HACKNEY COMMUNITY COLLEGE & OTHERS RESPONDENTS
Transcript of Proceedings
JUDGMENT
SUMMARY
PRACTICE AND PROCEDURE – Case management
Various case management orders made at a case management
discussion upheld.
Part of one order, however, deleted. The order in effect
required the Claimant to select no more than six incidents of discrimination
and three incidents of victimisation for inclusion in a Schedule, and provided
that only these allegations (together with allegations relating to dismissal)
should be entertained at the final hearing. The Claimant’s detailed claim form
appeared to allege a greater number of incidents of discrimination and
victimisation. There was no power to require a Claimant to select part only of
his case in this way.
HIS HONOUR JUDGE RICHARDSON
1.
This is an appeal by Mr Jonathan McKinson
(“the Claimant”) against aspects of a case management order made by Employment
Judge Weiniger at London Central. The order was made at a hearing on 25 March 2011. It was formally sent out on 12 April 2011.
2.
There is an appeal to the Employment
Appeal Tribunal only on a question of law: see section 21(1) of the Employment
Tribunals Act 1996. Case management orders seldom give rise to questions
of law. They are made by employment judges in the exercise of wide powers
given by rule 10 of the Employment Tribunal Rules 2004 (Appendix I to
the Employment Tribunals (Constitution and Rules of Procedure) Regulations
2004).
The background
3.
The Claimant was employed by Hackney Community College (“the First Respondent”) as a lecturer with effect from 14 April 2007. By September 2009 he was employed half time in the College’s sixth form
centre, teaching mainly religious studies, and half time as a co-ordinator in
the foundation studies department. During 2010 he raised grievances in
relation to various issues arising out of his employment. On 31 October 2010 he was made redundant.
4.
In January 2011 the Claimant presented a claim form (an ET1) to the
Tribunal. He set out a range of issues which he said amounted to race
discrimination and also “victimisation of the claimant following the claimant
raising a grievance on race discrimination”. Substantial detail was given,
running to some 50 paragraphs.
5.
The claim form did not tick the box for unfair dismissal, but it is
common ground that an ordinary claim for unfair dismissal was also encompassed
within the details given: see paragraph 10 of the case management discussion
order.
6.
The claim form named three additional respondents, all members of staff
of the First Respondent. One of these – the Fourth Respondent, a member of the
First Respondent’s HR team – did not figure by name in the details of the claim
given by the Claimant.
7.
The Respondents served a joint response form (an ET3). The Respondent’s
case for saying that the redundancy was fair was set out. The allegations of
race discrimination and victimisation were denied. It was said that many were
out of time. It was also said that “during his employment with the College,
the Claimant did not at any stage make any allegation of race discrimination
against any of the Respondents”.
8.
It was against this background that the
case management discussion came on before Employment Judge Weiniger. The
Claimant’s grounds of appeal, as focussed by his skeleton argument and
submissions today, concern three main areas. I will re-order them in what I
regard as the order of their real importance.
Order for particulars of
discrimination and victimisation
9.
The Employment Judge ordered:
“12. Apart from the matter of dismissal which I have addressed
above, following discussion on the matter, I direct that the Claimant shall by
6 May 2011, file and serve a schedule of no more than six incidents of direct
discrimination; and no more than three incidents of victimisation, and unless
permission for amendment is sought and obtained, no other allegations than
these and the allegations relating to dismissal will be entertained at the
Final hearing. The allegations shall be set out in chronological order
separately in respect of direct discrimination and victimisation, shall be
sequentially numbered, and each shall be collated in accordance with the
following details:
(i) Date of incident, or if a period is contended for, the start
and end date.
(ii) The nature of the allegation, that is to say whether direct
discrimination or victimisation. It is not necessary at this stage for the
Claimant to identify whether the statutory resource is Race Relations Act 1976
or Equality Act 2010 as that is a matter which will depend on the dates
provided and the transitional provisions which govern that. However it is
recorded that all the allegations in question in this case relate to race.
(iii) Details of each itemised allegation. In not more than 50
words for each allegation the Claimant should set out full details of the
allegation, describing the act, omission or conduct complained of, identifying
any documents which relate thereto, and if words were used setting out the gist
of those words.
(iv) Alleged perpetrator. In respect of each allegation the
Claimant shall set out the identity of the alleged perpetrator.
(v) Witnesses. In respect of each allegation the Claimant shall
identify all witnesses to the conduct complained of.
(vi) Comparator. In respect of each allegation where a
comparator is appropriate the Claimant shall set out the comparator relied on,
and if a hypothetical comparator is relied on he should set out the
characteristics and circumstances which he contends are appropriate.
(vii) All allegations which are made out must be sourced from
the Claim Form and from the amendments for which permission has been given as
recited above.”
10.
The Claimant’s first complaint about this
order is that it imposes a restriction on the matters about which he may claim
for which there is no warrant in law. There are more than six potential
incidents of direct discrimination and more than three incidents of
victimisation. If he is restricted to these at the final hearing then in
effect a significant part of his claim is struck out. As to the management of
claims involving a number of issues, which may together be relied on as
constituting an act extending over a period, he refers to and relies on Hendricks
v Commissioner of Police of the Metropolis [2002] ICR 530 at paragraphs
52 and 53.
11.
The Claimant’s second complaint about this order is that it requires him
to set out again what he has in reality and in substance set out in the claim
form. The order is, he submits, quite unnecessary; it was perverse and
contrary to natural justice, because the Employment Judge did not consider his
side of the case fully.
12.
In response Mr Richard Owen-Thomas on behalf of the Respondents argues
that the Employment Judge acted within his discretion to limit the case in this
way and to clarify the precise allegations which the Claimant was making. He
lays emphasis on the importance of case management and submits that the case
management decisions of employment judges ought to be upheld. He too relies on
Hendricks at paragraphs 52 and 53.
13.
My conclusions on this part of the case are as follows.
14.
Case management of discrimination claims is a notoriously difficult
exercise, particularly where the allegations are numerous and extend over a
significant period.
15.
The first task always is to identify precisely what claims are being
made and on what basis. This assists the claimant: certain elements have to be
established, and if the claimant has not addressed his mind to them before the
hearing, it may be too late to do so at the hearing. Moreover it is a
necessary protection for the respondent: allegations of discrimination are
serious matters, and a respondent is entitled to know precisely what the
allegations are which must be faced. Further, it is extremely difficult for an
employment tribunal to read into and conduct a final hearing without a clear
understanding of what is and is not being run at the hearing.
16.
Once it has been established just what claims are being made, it should
then be possible to identify what is in issue. A list of issues is a tool of
great value in a discrimination claim.
17.
Once it is plain what the potential issues are, the case can (if
necessary) be further case-managed. How much case management is required will
depend on the individual case. In some cases – particularly where there are a
great number of issues, over many years, significant further case management
may be required. An employment judge may encourage the parties to concentrate
on issues which really matter as suggested in Hendricks; in an
appropriate case (although there may not be many of these) an employment judge
may select issues to be tried first, if this can be done fairly to both
parties. But case management must take place within the rules.
18.
Turning to this case, the Employment Judge was in my view entitled to
ask the Claimant to identify in schedule form precisely what his complaints of
discrimination and victimisation were. The claim form ran to 50 paragraphs and
is in the nature of a narrative. The complaints of discrimination and
victimisation have to be distilled from it. The Employment Judge was entitled
to say to the Claimant that he should distill them; and it is in his interests
as well as those of the Respondents that he should do so. It is not
satisfactory to leave a Tribunal at a final hearing to work out from a
narrative claim form precisely what complaints are being put and how. I see
nothing perverse in this part of the Employment Judge’s order. Nor was it in
any way in breach of natural justice - at a case management discussion there
are limits to the extent to which an employment judge is required to explore in
detail the case of each party. The order for a schedule was good case
management, likely to be of benefit to both sides and the Tribunal in due
course.
19.
However, in my judgment the Employment Judge erred in law in limiting
what would be considered at the final hearing to no more than six incidents of
direct discrimination and no more than three incidents of victimisation. The
claim form on its face appears to encompass more than six incidents of direct
discrimination and more than three incidents of victimisation. Moreover
incidents of victimisation and discrimination may overlap; there is not
necessarily any watertight compartment between them. There is no power to
require a claimant in effect to self-select which of a number of complaints,
all encompassed within a claim form, he will pursue at the final hearing. This
part of the Employment Judge’s order must be deleted.
20.
I have said that, once issues are
identified, there may need sometimes to be further case management along Hendricks
lines. Speaking for myself, I doubt whether this case is so complex that a
great deal of further case management will be required, once the issues are
identified. If it is, either party may apply for a further case management
discussion.
Order for particulars of protected
act
21.
Paragraph 9 of the Employment Judge’s
order provides –
“By 6 May 2011 the Claimant shall serve but not file the dates
and details of every protected act upon which he relies for his claims for
victimisation under Race Relations Act 1976 or Equality Act 2010. He shall
also at the same time provide copies of any documents which relate to the
protected act. If any correspondence or documents are relied on as a protected
act the Claimant shall specifically identify the words used within those documents
upon which he relies as qualifying any relevant document as a protected act
under the Race Relations Act 1976 and/or the Equality Act 2010.”
22.
The Claimant argues that the Respondents
already know the protected act. He refers to a report produced after he left
which quotes him as perceiving certain actions to be “unfair to the point of
witting or unwitting discrimination”. He says it was perverse and unfair to
order him to give particulars and contrary to the overriding objective.
23.
In my judgment the Employment Judge was
right to order particulars. A victimisation claim requires a protected act to
be identified: see, for example, section 27(2) of the Equality Act 2010.
The nature and date of the act will be important. It is not enough for the claimant
to say that at some point after he left the person reporting on his grievance
recognised that he was claiming discrimination. The response form puts the
matter in issue and it is highly desirable that particulars should be given.
The Claimant has explained his case to me today; I see no reason why it should
not be put in writing and every reason why it should be.
Amendment
24.
The Claimant sent an email to the
Tribunal on 21 February 2011 setting out some details, which he described as
“Additional Information” relating to the Fourth Respondent. He said:
“The information below is not new information but provides the
specific detail of [the Fourth Respondent’s] actions cited in the claim.
Please ensure that this information is attached to the claim as additional
information.”
25.
The Employment Judge in effect required a
formal application to be made for an amendment.
26.
The Claimant argues that he had already
made an application for permission to amend by his email dated 21 February;
that the Employment Judge could and should have dealt with it; and that no
further application was required.
27.
What the Claimant wanted to add was in reality detail of his existing
claim, and Mr Owen-Thomas has rightly accepted today that it is appropriate to
grant leave to amend. I will do so, exercising my power under section 35 of
the Employment Tribunals Act 1996.
28.
The Claimant also wishes to complain about a comment the Employment
Judge made in the course of granting two other amendments to the claim form.
The Employment Judge thought that the Respondents did not know about two
earlier emails. He says the Respondents did. But there is an appeal to the
Appeal Tribunal only on a question of law arising out of a decision. The only
decision here was in the Claimant’s favour; and no error of law arises.
29.
In an effort to keep the hearing date in
November, I will also amend the dates for certain activities to take place
which have held fire pending resolution of this appeal. The Claimant agrees
that he will provide the required particulars by 22 August; the Respondent will
respond to the particulars by 12 September, at which point the issues for the
Tribunal should be clear; disclosure will take place by 26 September; and
witness statements will be exchanged by 10 October.
