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A Case Management Plea from the EAT

25.01.22

Nicholas Siddall QC analyses the recent judgment of the EAT (HHJ Taylor) in Liverpool NHS-v-Poullis [2022] EAT 9 and the guidance there given as to the correct approach to case management by an Employment Tribunal.

The Facts

The facts of the claim shall be wearily familiar to many practitioners. The Claimant had served an initial ET1 which appeared to assert 8 Protected Disclosures (“PDs”) and 16 allegations of detriment. The Respondent sought further and better particulars of the Claimant’s case (“F&BPs”) which led to various iterations of the claim culminating in a document which advanced 17 PDs and 60 allegations of detriment.

At an initial case management hearing the Employment Tribunal had listed the matter for a PH on 3 possible bases (including an application for a deposit) with permission to the Respondent to confirm by a certain date which of the same were to be advanced.

At a later case management hearing a separate Employment Tribunal sought to ‘cancel’ the hearing of the Respondent’s deposit application and the Respondent appealed contending that this was an error of law.

The Appeal

The primary issue in the appeal was whether there could be said to have been a material change in circumstances such as to allow the second Employment Tribunal properly to cancel the deposit PH. The appeal also discussed whether the identification of such a change in circumstances was jurisdictional or a matter of discretion for the Employment Tribunal. The EAT considered that it was better to express no view on that issue as it was not material to its eventual decision. It did however doubt HHJ Hand QC’s statement in Serco-v-Ltd v Wells [2016] ICR 768 was correct or binding (see paragraph 43) and suggested that this issue may merit consideration in a future appeal.

Case Management Guidance

In the course of its judgment the EAT gave guidance on two practices often seen of Employment Tribunals, and why they ought to be avoided, in a manner which shall be useful to practitioners going forward.

i) Early Provision of F&BPs and Determination of Amendments at the first PH

The EAT was clear that the parties owed a duty to collaborate in accordance with the overriding objective and that any applications to amend ought generally to be determined at the first PH of a claim. The EAT said this:

  1. …If a preliminary hearing for case management ends with a party being sent away to provide additional information this generally should be seen as a failure. It almost always is the start of a process of expansion of the pleaded case, often resulting in applications for amendment and/or strike out which rarely advance the overriding objective. An employment judge cannot make a success of a preliminary hearing for case management if the parties do not co-operate. The parties in accordance with their duty to assist in the application of the overriding objective should do all that they reasonably can to seek to ensure that the issues can be identified and any applications for amendment be determined at the first preliminary hearing for case management, which in many cases should be the only one necessary. The overriding objective is advanced by focusing on the core issues in claims and, particularly in discrimination and public interest disclosure claims, by bringing them to a hearing without excessive interlocutory wrangling. Where the turn is taken in the direction of repeated particularisation of the pleaded case, and numerous preliminary hearings for case management are held, the parties and the employment tribunal are rarely the winners.”

ii) Avoidance of Listing ill-defined PHs

The EAT was also critical of the first Employment Tribunal having listed the matter for a 1 day PH with a ‘shopping list’ of issues which that PH may consider. Further at the time of the initial listing the Respondent had not clarified the precise basis on which it advanced any or all of its applications.

Once again the EAT deprecated this practice. It observed that listing a hearing on such a basis may force a later Employment Tribunal to entertain the same (there being no material change in circumstances) where they enjoyed little real merit.

The EAT said this

“46.      …I do not consider it is good practice simply to order that the preliminary hearing will determine such applications as the parties, or one of them, advances, but there should be a provision for the matter to be considered by an employment judge to decide whether a preliminary hearing is appropriate and, if so, what applications are to be determined, having full regard to the overriding objective. Determination of whether a preliminary hearing will be held, and what applications will be determined, should be in the control of the employment judge, not the parties. There may also be circumstances in which a judge considers that a preliminary hearing would be appropriate if brought on speedily but that the potential for saving of time and/or cost would diminish as the matter proceeds towards a hearing. A situation should be avoided in which the holding of a preliminary hearing was in accordance with the overriding objective at the time it was fixed, but thereafter ceases to be so, but the employment tribunal is powerless to vacate it. It may be appropriate to make it clear in the order that the preliminary hearing is fixed for a specific date and that if it is not conducted on that date the order will lapse so that it would be necessary for the application to be renewed before consideration is given to re-listing a preliminary hearing. It is also always important that the employment tribunal seeks to avoid time and expense being incurred in preparation for an application that does not proceed.”

Conclusion

It appears likely that the words of HHJ Taylor shall be oft-cited and feature regularly in the first case management PH of a claim. They contain points which assist both Claimants and Respondents and it is to be hoped that Employment Tribunals respond to the common-sense points which they advance.

Nicholas Siddall QC is a member of Littleton’s employment team and accepts instructions from Claimants and Respondents in all facets of significant Employment Tribunal litigation.

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