Can the Employment Tribunal limit the number of discrimination claims to be determined at any one hearing

"Only with great caution", said the Employment Appeal Tribunal in Tarn v Hughes (and ors) UKEAT/0064/18/DM – and the EAT then went on to give some helpful guidance on case management of discrimination claims.

In Tarn, the claimant GP had brought a large number of complaints of discrimination against her (former) partner GPs.

At the case management stage, the ET had required the claimant to select:

"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"

The order went on to state that the claimant was not precluded from relying on the other allegations as background and/or context, or pursuing them at a later hearing.

The underlying claim contained some 31 factual allegations. That, commented the Tribunal, would require it to make 180 separate findings (i.e. for each act, whether it happened, whether it was less favourable treatment, and whether it was because of the protected characteristic).

Although the appeal was pursued on a number of grounds, the crux of the matter is set out at para 25 of Tarn. In particular, HHJ Eady QC commented that

". . . of its nature, a discrimination claim is likely to require an ET to draw inferences from the evidence and from its primary findings of fact; to adopt a fragmented approach to the issues may "have the effect of diminishing any eloquence that the cumulative effects might have [on the determination of causation" (see per Mummery J (as he then was) in Qureshi at page 875H)

The judgment goes on to discuss guidance as to the possibility of selecting sample allegations in discrimination cases drawn from Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96 CA and HSBC Asia Holdings BV and another v Gillespie UKEAT/0417/10, before giving a summary at para 28. I won't reprise that paragraph in its entirety but the essence is this:

  1. The ET has a broad discretion to manage cases justly.
  2. In discrimination claims, the starting point is to identify precisely what claims are made and on what basis (and a list of issues will help).
  3. There will be some cases which are apt for striking out. However, it is not otherwise open to the ET to limit the claims a complainant can pursue - that would be to restrict her access to justice and to potentially deny an effective remedy in a case of unlawful discrimination.
  4. The ET could, in an appropriate case, separate out a sample of complaints or issues to be heard in advance of the remaining allegations.
  5. But that does not mean that such a course should be adopted, "save in those cases where it is clear this would not endanger the just determination of the case - something that might be difficult for the ET to assess at a preliminary stage".
  6. It is often necessary, in discrimination claims, to look at the whole picture before looking at whether there has been unlawful discrimination in respect of a particular allegation. Asking a claimant to select his or her ten best points may often be inconsistent with the just determination of the claim(s).
  7. Moreover, separate determination of selected allegations or issues may not be the proportionate course in a particular case.

As to the appeal in Tarn itself, the EAT thought that the ET had failed to have regard to critical factors - for instance, given the list of issues, it was clear that much of the evidence given on one issue would inevitably address other factual issues at the same time. The Claimant had been placed in the (potentially) unfair position of having to choose between either continuing to assert her right to pursue all of her claims, or simply relying on them as context for the others. The appeal was therefore allowed.

I think this case is interesting not because of the particular disposal, but because of the general treatment of case management and discrimination claims. That inevitably has an impact on how practitioners should present discrimination claims. There is, very often, a tension between choosing the strongest allegations, thereby providing focus, and choosing a large number of allegations, thereby providing context - assisting the Tribunal to draw crucial inferences from the evidence. I suspect it is now less likely that breadth will be "managed out" at a preliminary hearing.

 

Ezra Macdonald