E v X & Anor (JURIDICTIONAL : TIME POINTS & PRACTICE AND PROCEDURE) [2020] UKEAT 20_0079

EAT
E v X & Anor (JURIDICTIONAL : TIME POINTS & PRACTICE AND PROCEDURE)
[2020] UKEAT 20_0079 · 2020-12-10
[47]“Applying the principles set out by the Court of Appeal in Hendricks and adopted by the courts in the later authorities, I can well see that Ms Aziz has a prima facie case for saying that FDA's conduct in each period constituted a continuing act or possibly a continuing omission.” He concluded, however, that there was no basis for connecting the three periods in question as a continuing act and, therefore, refused permission to appeal on ground one. The same issue was said to undermine ground two, which was dismissed. 43. In Robinson , Her Honour Judge Eady QC (as she then was) admitted of the prospect that a claimant could make out a prima facie case that the matters of which she complained amounted to conduct extending over a period, in circumstances in which the relevant facts, taken individually, fell under different headings of discrimination (in which, it is clear, she included harassment). She stated that such an assessment will inevitably be case-specific, but that, if the claimant were, for example, complaining that putting her on particular shifts was a continuing act of direct discrimination and that, as the other side of that particular coin, failing to put her on different shifts constituted a failure to make reasonable adjustments, she could not see why that claimant would not be entitled to say that those matters should be considered together as constituting conduct extending over a period. However, Her Honour Judge Eady QC considered that such an argument could not succeed when one addressed the case as put. At paragraph 64, she noted:
“As her Particulars made clear, [the claimant] understood that her dismissal was because she could not attend work, as advised by Occupational Health, because (on her case) of the consequences of the earlier discriminatory conduct. That was not the same as saying that the dismissal decision was part of the same conduct. ... In the present case, however, at a more basic level, the claimant’s claim did not link the earlier acts of discrimination to the decision to dismiss. At most, she was complaining that the decision to dismiss related to the consequences of the earlier acts of discrimination. She plainly saw that as unfair - she saw it as an act of direct disability discrimination - but her case did not characterise it as an extension (or continuation) of the same conduct…” 44. In Hale , Choudhury P considered an appeal (so far as material for current purposes) from the tribunal’s finding that an NHS trust’s decision to instigate the MHPS procedure should be treated as a one-off act of discrimination, rather than as part of an act extending over a period. Having cited the dictum of Balcombe LJ, in Sougrin v Haringey Health Authority [1992] ICR 650, CA, by which he held that “in order to see what is “the acts complained of” within the meaning of section 68(1) it is necessary to look at the originating application”, Choudhury P held (at paragraph 38) that the issue as formulated complained of being subjected to disciplinary procedures and ultimately being dismissed. That formulation suggested that the complaint was about a continuing act commencing with a decision to instigate the process and ending with a dismissal.”
At paragraph 42, he continued:
“By taking the decision to instigate disciplinary procedures, it seems to me that the respondent created a state of affairs that would continue until the conclusion of the disciplinary process. This is not merely a one-off act with continuing consequences. That much is evident from the fact that once the basic process is initiated, the respondent would subject the claimant to further steps under it from time to time. Alternatively, it may be said that each of the steps taken in accordance with the procedures is such that it cannot be said that those steps comprise “a succession of unconnected or isolated specific acts” as per the decision in Hendricks , paragraph 52.”
He concluded that the tribunal had erred in treating the first stage of the process as a one-off act. In the end, Hale stands as no more than an example of the application of the applicable principles and I did not understand Ms Criddle to suggest otherwise. 45. In Caterham , His Honour Judge Auerbach considered an appeal from the tribunal’s determination that the treatment complained of, up to and including a complaint of constructive dismissal, had all formed part of “conduct extending over a period”, for the purposes of S123(3)(a) of the EqA . The ground of appeal under consideration contended that the judge had erred in law in definitively deciding that question at a preliminary hearing without having determined, in respect of the relevant allegations, what had factually occurred and whether any of it, subject to the time point, had involved discriminatory treatment, as alleged. Having first concluded that the tribunal had made a definitive determination that all of the alleged conduct, up to and including the alleged dismissal, had formed part of a single piece of conduct extending over a period, His Honour Judge Auerbach held that determination to have been an error of law:
“53. … in short, because, at this preliminary hearing, the judge did not have any evidence before her, at all, on the continuing conduct issue; and she did not make, indeed could not have made, any finding of fact at all relevant to that issue, nor any findings about whether any of that alleged conduct involved (subject to the time point) conduct amounting to discrimination, as alleged. Absent such findings she could not properly have determined, definitively, whether any of the matters complained of involve something which, taken together with other matters complained of (so all of them), formed part of conduct extending over a period. 54. Rather, as is apparent in particular from paragraph 28, she reached her conclusion - in respect of the conduct extending over a period issue relating to these claims - solely on the basis of the consideration of the contents of the claim form. That, indeed, may be contrasted with the tribunal’s conclusion on the question of just and equitable extension, which proceeded from the facts found… … 56. But even if (which I did not, I think, have to decide), the Judge did, and was entitled to, take that view, that could only have led to the conclusion that the claims in question should not be struck out as being out of time. They would then proceed to a full hearing on the basis that the continuing conduct issue, and all the time points attendant upon it, remained live. …” 46. At paragraphs 58 to 66 of his judgment, His Honour Judge Auerbach observed as follows: 58. First, it is always important for there to be clarity, when a Preliminary Hearing is directed, at such a Hearing, and in the Tribunal’s decision arising from it, as to whether the Tribunal is considering (or directing to be considered), in respect of a particular complaint, allegation or argument, whether it should be struck out (and/or made the subject of a deposit order), or a substantive determination of the point. 59. The differences, in particular, between consideration of a substantive issue, and consideration of a strike out application, at a Preliminary Hearing, are generally well understood, but still worth restating. A strike out application in respect of some part of a claim can (and should) be approached assuming, for that purpose, the facts to be as pleaded by the Claimant. That does not require evidence or actual findings of fact. If a strike out application succeeds, on the basis that, even if all the facts were as pleaded, the complaint would have no reasonable prospect of success (whether because of a time point, or on the merits), that will bring that complaint to an end. But if a strike out application fails, the point is not decided in the Claimant’s favour. The Respondent, as well as the Claimant, lives to fight another day, at the Full Hearing, on the time point and/or whatever point it may be. 60. By contrast, definitive determination of an issue which is factually disputed requires preparation and presentation of evidence, to be considered at the Preliminary Hearing, findings of fact, and, as necessary, the application of the law to those facts, so as to reach a definitive outcome on the point, which cannot then be revisited at the Full Merits Hearing of the case. 61. All of that applies equally where the issue is whether there has been conduct extending over a period for the purposes of the section 123 time limit. If the Tribunal considers (properly) at a Preliminary Hearing that there is no reasonable prospect of establishing at trial that a particular incident, complaint about which would, by itself, be out of time, formed part of such conduct together with other incidents, such as to make it in time, that complaint may be struck out. But if it is not struck out on that basis, that time point remains live. If, however, the Tribunal decides at a Preliminary Hearing, that the claim does relate to something that is part of continuing conduct, and so is in time, then the issue has been decided and cannot be revisited. 62. Some of the authorities do, I think, need to be read with some care in this regard, because it is not always apparent, without a close and careful reading, whether the Tribunal’s decision under challenge was by way, effectively, of a decision whether or not to strike out a complaint by reference to a time point, or by way of definitive determination of that point. That is, sometimes, because the authorities do not always use the express language of “strike out”, or refer to the strike-out Rule, or use the language of “no reasonable prospect of success”
. But, on a careful reading, it is clear that a number of these authorities are, indeed, concerned with whether a particular complaint or complaints should have been struck out, on the basis that there was no reasonable prospect of success of establishing that they were in time because they formed part of conduct extending over a period; and that these authorities (properly) use the “prima facie case” test as a synonym or shorthand for the strike-out test. 63. So, in short, the prima facie case test is appropriate, as shorthand for the “no reasonable prospects of success” test, where the Tribunal is persuaded that the matter is suitable for consideration at a Preliminary Hearing, of whether a particular complaint or complaints should be struck out on the basis that it is, in isolation, out of time, and there is no reasonable prospect of success, on the pleaded case, of it being found in time as forming part of continuing conduct. 64. But a determination of whether, substantively, there is conduct continuing over a period, cannot be reached at a Preliminary Hearing on the basis merely of consideration of whether there is a prima facie case on the pleading. Were it otherwise, it would mean that there was actually a lower threshold for establishing conduct extending over a period, if the matter were considered at a Preliminary Hearing, than if it were considered at a Full Hearing. That cannot be right. Read as a whole, and with care, none of the previous authorities so holds. 65. The authorities do indicate that it is not necessarily in every case an error of law for an Employment Tribunal to consider a time point of this sort at a Preliminary Hearing, either on the basis of a strike out application, or, possibly even, in an appropriate case, substantively. If that can be done properly, it may be sensible and, potentially, beneficial, so that time and resource is not taken up preparing, and considering at a full merits hearing, what may be properly found to be truly stale complaints that ought not properly to be so considered. 66. But, as is well-known, the authorities also repeatedly urge caution - having regard to the difficulty of disentangling time points relating to individual complaints from other complaints and issues in the case; because there may be no appreciable saving of preparation or hearing time in any event, if episodes that could potentially be severed as out of time, are in any case relied upon as background to more recent complaints; because of the acute fact-sensitivity of discrimination claims, and the high strike-out threshold; and because of the need for evidence to be prepared, and facts found (unless agreed), in order to make a definitive determination of such an issue.” 47. With respect to His Honour

Judge Auerbach, I do not share his view as stated at paragraph 59, that:

“A strike out application in respect of some part of a claim can ( and should ) be approached assuming, for that purpose, the facts to be as pleaded by the Claimant. That does not require evidence or actual findings of fact.”
(emphasis added.) It seems to me that the emphasised parts of such a conclusion are at odds with the conclusion of Hooper LJ, at paragraphs 10 and 11 of Lyfar (cited above), by which I am bound. It is also at odds with the way in which such cases proceed in practice and without criticism by the higher courts - see, for example, Hendricks , at paragraph 22, from which it is clear that the claimant had produced a 42-page witness statement and given oral evidence at the preliminary hearing. In my judgment, whilst, in any given case, it may be possible and appropriate to determine a strike-out application by reference to the pleaded case alone, it cannot be said that that approach should be adopted on every occasion. That is not to say that the tribunal is to consider the assertions made by the claimant uncritically, or to disregard any implausible aspects of the claimant’s case, taken at its highest. Save, possibly , to highlight any factual basis for asserted implausibility (which is not synonymous with the mere running of an alternative case), one would not expect evidence to be called by a respondent in relation to the existence, or otherwise, of a prima facie case (see, for example, paragraph 36 of Hendricks ; and paragraphs 23 and 35 of Aziz ). 48. In Sridhar , Cavanagh J held that, (1) whilst it is better if a continuing state of affairs point is made specifically in a claim form, that is not essential; and, similarly, (2) as a matter of law and procedure, it is not necessary that an agreed list of issues state in terms that the claimant is complaining of a continuing discriminatory state of affairs. On the facts of that case, so Cavanagh J held, by the time of the preliminary hearing on time limits, it had been clear, from his witness statement, that the claimant was alleging a continuing act. He had said that, “the Respondent is responsible for the ongoing situation and continuing state of affairs…All the allegations are linked to a policy of the Respondent” . In the light of Hendricks , Lyfar and Aziz , the tribunal should only have struck out the complaints at the preliminary hearing stage if, on the material before it, the claimant had not established a prima facie case relating to the continuing discriminatory state of affairs, the claims were not capable of being part of such a continuing discriminatory state of affairs, and it was not reasonably arguable that there was such a continuing discriminatory state of affairs. All of these were different ways of saying the same thing. 49. At paragraphs 69 and 70, Cavanagh J went on to conclude:
“69. The only material of substance that the tribunal had to go on was the pleaded case. Mr Sridhar had not given oral evidence and his contentions have not been tested by cross-examination. On the basis of the pleaded case, in my judgment, it could not properly be said that the individual allegations were not capable of being part of a continuing discriminatory state of affairs. The allegations, if true, could at least potentially indicate a state of affairs [through] which Mr Sridhar as a doctor of Indian origin was being treated less favourably than a white doctor would have been treated in similar circumstances. There was, at least arguably, a constant theme running through the allegations relating to general treatment and undervaluing of Mr Sridhar as an associate specialist. 70. The allegation of a continuing discriminatory state of affairs on the pleading was not just a bare assertion without any possible foundation in fact. There was material in the pleaded case from which the inference of a continuing discriminatory state of affairs may be drawn. ... ”
In answer to the respondent’s contention that there was no substance to the allegation of continuing acts and that there had been breaks in time during which nothing was the subject of complaint, Cavanagh J held (at paragraph 71) that that might or might not be so but was a matter for the tribunal to decide, at the full merits hearing. It had not been open to the tribunal, at the preliminary hearing, to find that the claims were not capable of being part of a discriminatory state of affairs and to strike out the claims, even bearing in mind the broad discretion which a tribunal has in relation to strikeouts. That was particularly so in circumstances in which the tribunal had not heard any evidence on the point. The key principles distilled 50. With the qualification to which I have referred at paragraph 47 above, from the above authorities the following principles may be derived: 1) In order to identify the substance of the acts of which complaint is made, it is necessary to look at the claim form: Sougrin ; 2) It is appropriate to consider the way in which a claimant puts his or her case and, in particular, whether there is said to be a link between the acts of which complaint is made. The fact that the alleged acts in question may be framed as different species of discrimination (and harassment) is immaterial: Robinson ; 3) Nonetheless, it is not essential that a positive assertion that the claimant is complaining of a continuing discriminatory state of affairs be explicitly stated, either in the claim form, or in the list of issues. Such a contention may become apparent from evidence or submissions made, once a time point is taken against the claimant: Sridhar ; 4) It is important that the issues for determination by the tribunal at a preliminary hearing have been identified with clarity. That will include identification of whether the tribunal is being asked: (1) to consider whether a particular allegation or complaint should be struck out, because no prima facie case can be demonstrated, or (2) substantively to determine the limitation issue: Caterham ; 5) When faced with a strike-out application arising from a time point, the test which a tribunal must apply is whether the claimant has established a prima facie case, in which connection it may be advisable for oral evidence to be called. It will be a finding of fact for the tribunal as to whether one act leads to another, in any particular case: Lyfar ; 6) An alternative framing of the test to be applied on a strike-out application is whether the claimant has established a reasonably arguable basis for the contention that the various acts are so linked as to be continuing acts, or to constitute an on-going state of affairs: Aziz ; Sridhar ; 7) The fact that different individuals may have been involved in the various acts of which complaint is made is a relevant, but not conclusive, factor: Aziz ; 8) In an appropriate case, a strike-out application in respect of some part of a claim can been approached, assuming, for that purpose, the facts to be as pleaded by the claimant. In that event, no evidence will be required — the matter will be decided on the claimant’s pleading: Caterham (as qualified at paragraph 47 above); 9) A tribunal hearing a strike-out application should view the claimant’s case, at its highest, critically, including by considering whether any aspect of that case is innately implausible for any reason: Robinson and paragraph 47 above; 10) If a strike-out application succeeds, on the basis that, even if all the facts were as pleaded, the complaint would have no reasonable prospect of success (whether because of a time point or on the merits), that will bring that complaint to an end. If it fails, the claimant lives to fight another day, at the full merits hearing: Caterham ; 11) Thus, if a tribunal considers (properly) at a preliminary hearing that there is no reasonable prospect of establishing at trial that a particular incident, complaint about which would, by itself, be out of time, formed part of such conduct together with other incidents, such as to make it in time, that complaint may be struck out: Caterham ; 12) Definitive determination of an issue which is factually disputed requires preparation and presentation of evidence to be considered at the preliminary hearing, findings of fact and, as necessary, the application of the law to those facts, so as to reach a definitive outcome on the point, which cannot then be revisited at the full merits hearing: Caterham ; 13) If it can be done properly, it may be sensible, and, potentially, beneficial, for a tribunal to consider a time point at a preliminary hearing, either on the basis of a strike-out application, or, in an appropriate case, substantively,, so that time and resource is not taken up preparing, and considering at a full merits hearing, complaints which may properly be found to be truly stale such that they ought not to be so considered. However, caution should be exercised, having regard to the difficulty of disentangling time points relating to individual complaints from other complaints and issues in the case; the fact that there may make no appreciable saving of preparation or hearing time, in any event, if episodes that could be potentially severed as out of time are, in any case, relied upon as background more recent complaints; the acute fact-sensitivity of discrimination claims and the high strike-out threshold; and the need for evidence to be prepared, and facts found (unless agreed), in order to make a definitive determination of such an issue: Caterham . The Principles Applied to this Case 51. Revisiting the Particulars of Claim with the above principles in mind, it is first necessary to consider the substance of the claim, as identified in the Claim Form: Alleged Harassment 1) The initial set of comments. which are alleged to constitute harassment by Z and E are said to have been made in September/October 2016 (paragraph 4); 2) The second set of comments is said to have been made in December 2016 (paragraph 6); 3) Further comments are said to have been made by Z and/or E in September and October 2017 (paragraphs 9 to 11); and 4) The last comments alleged to constitute harassment are said to have been made on 23 rd January 2018 (paragraph 13). Alleged Victimisation 5) Following her protected act in submitting a Dignity at Work complaint, in February 2018, X is said to have been victimised: (a) by colleagues within the team, between 14 th February and 23 rd March 2018 (paragraph 23); (b) in the form of her move from the Urgent Care Department to the Central Community Rehabilitation Team (“CRT”) Department, initially on a temporary basis, on 16 th May 2018 (paragraph 27); (c) through the absence of any acknowledgement of her wedding, on 25 th May 2018, and through being ignored in the course of a training session in October 2018 (paragraph 28); and (d) when her move to the Central CRT Department was made permanent, from 1 st December 2018 (paragraph 29). 52. Implicit in paragraph 31 of her Particulars of Claim and explicit, at paragraph 5 of her witness statement for the preliminary hearing, is the Claimant’s assertion that there is a link to be made between the various acts of which complaint is made. As a matter of principle, it matters not that they encompass allegations of harassment and victimisation. Again, as a matter of principle, the fact that different individuals may have been involved in the various acts alleged, whilst relevant, is not conclusive. Nonetheless, at a preliminary hearing, L would have been entitled to direct the tribunal’s attention to any matters which, in its critical assessment of the pleading and relevant evidence, might be thought to be implausible. 53. The issues identified by Employment Judge Ryan, and his related directions, were framed so as to enable determination, at a preliminary hearing, of the issues in relation to which evidence would be called (in line with the approach in Lyfar ), and the parties had prepared for a preliminary hearing accordingly. Sensibly, there has been no suggestion by X that the issues to be determined at that hearing lacked the requisite clarity. Whilst not cited to Employment Judge Ryan by any party, nothing in Caterham precluded that course; indeed, His Honour Judge Auerbach had observed, that, if it can be done properly, such a course may be sensible and, potentially, beneficial. I note that, at paragraph 59, he had also observed that the applicable principles were well understood, but were worth re-stating; and, and at paragraph 66, that, “as is well-known, the authorities also repeatedly urge caution” . On its face, such language refers to what His Honour Judge Auerbach considered to be established principle, not a development of, or departure from, it. 54. In my judgment, at its highest, Caterham serves as a reminder that caution should be exercised, for the reasons stated by His Honour Judge Auerbach, which are fact-sensitive considerations. There is nothing new in that proposition (helpful as it is to have it re-stated), which may be found, for example, in Arthur v London Eastern Railway Limited (trading as One Stansted Express) [2006] EWCA Civ 1538 , to which reference is made at paragraph 11 of Lyfar . In Arthur , at paragraph 36, Mummery LJ had held: 55. There is nothing to suggest that Employment Judge Ryan did not have the appropriate principles in mind when ordering a preliminary hearing, in circumstances in which X’s then-representative had sought to persuade him that all matters should be dealt with at a final hearing (see paragraph 4 of his reasons). There was no appeal from his order. The parties complied with his directions and attended the preliminary hearing before Employment Judge Sherratt, ready to call evidence and make submissions on the issues which he had identified. 56. Against that background, the question arises as to whether the course adopted by Employment Judge Sherratt was permissible. Before addressing that question, I turn to consider the cases of Montali ; Serco and Dobson , on which L and (by adoption of L’s submissions) E rely. Montali 57. The facts giving rise to Montali are similar to those with which I am concerned. The applicant had presented an originating application, complaining of disability discrimination and victimisation. In its notice of appearance, the employer asserted that the majority of her complaints were statute-barred. It sought determination of that issue, as a preliminary issue, a course which the applicant’s solicitors opposed, contending that the issue ought to be determined at the full merits hearing of the complaint. At a directions hearing, the tribunal chairman ordered that a preliminary hearing be convened to determine whether the applicant’s claims were statute-barred. The applicant did not appeal against that direction and each side prepared for the hearing of the preliminary issue. At that hearing, a differently-constituted tribunal took the view, of its own motion, that the matter would be better decided at the full hearing and declined to hear it as a preliminary issue. The employer appealed from that order. 58. At paragraphs 26 and 28, the EAT held that the overriding objective provided the clearest possible indication that, when exercising any power under the rules, the employment tribunal will follow the same principles as those spelled out in the Civil Procedure Rules. In particular in the present case, it would not reverse any earlier interlocutory order which had dictated the parties’ preparation of their cases, in the absence of a material change in circumstances. The second employment tribunal had fallen into error in reversing the earlier tribunal’s direction as to the holding of a preliminary hearing, in the absence of any change in circumstances. The aborting of the preliminary hearing had been a wrong exercise of discretion and wrong in principle. If the applicant had been dissatisfied with the earlier direction, she ought to have appealed it. She had not done so. Nor had she made any complaint at the commencement of the preliminary hearing. If litigants and, more particularly, the tribunal itself, revisit procedural points already decided in the absence of change of circumstances, there will be uncertainty and repetition, rather than clarity and finality, within the processes of tribunal litigation. 59. Having so held, at paragraph 30 the EAT addressed disposal. The full hearing of the applicant’s claims had previously been fixed for the fifteen-day period commencing approximately six months after the date of the appeal hearing. The EAT ordered that the Regional Chairman should direct a fresh hearing date for the hearing of the preliminary issue as originally ordered, before a tribunal different from that which had declined to hear that issue. The EAT noted that such an order would inevitably put back the timetable set for the substantive hearing and that it would be for the employment tribunal to reconsider that timetable. If the existing full hearing listing could be retained, all well and good. Otherwise, a new date would have to be set. The full hearing would also take place before a fresh employment tribunal. Serco 60. In Serco , an employment judge had ordered a preliminary hearing to determine whether the claimant had sufficient length of service to bring, amongst others, a claim of unfair dismissal. Subsequently, a list of 96 issues had been agreed between the parties. Before the preliminary hearing took place, a different employment judge, at a case management hearing, concluded that the preparation and agreement of that list of issues, which extended beyond those envisaged by the previous judge, constituted a material change, meaning that the preliminary issue previously ordered would resolve only a few of the issues between the parties. On that basis, pursuant to Rule 29 of the 2013 procedural rules , he decided to revoke the order as being “necessary in the interests of justice” and in accordance with the overriding objective to deal with the case fairly and justly. 61. Allowing the employer’s appeal, the EAT held (at paragraphs 43 and 45) that the principle underlying the procedural rules, of the finality, certainty and integrity of judicial decisions and orders, usually directed any challenge to an order of the tribunal towards an appeal to a superior tribunal and discouraged a judge of equivalent jurisdiction from looking again at any order. Any interference with a previous interlocutory order by a judge of equivalent jurisdiction had to be “necessary in the interests of justice”, in accordance with rule 29, which was to be interpreted as requiring a material change of circumstances since the order was made, or that the order had been based on a material omission or mistreatment, or some other substantial reason necessitating the interference. Whether or not a subsequent event amounted to a material change in circumstances was a matter of jurisdiction and not a question of the exercise of discretion, and was, therefore, to be decided by taking an objective view of the factual matrix. At paragraph 48, the EAT went on to hold that the compilation of the list of issues in that case, distilled, no doubt, from the respective pleadings, had made no difference to the nature of the case and could not be regarded as a material change of circumstances. Accordingly, there had been no judicial basis upon which the second judge could have interfered with the earlier order. Having so held, the EAT ordered that the original tribunal’s order should be restored and a separate preliminary hearing listed. If that meant that the full hearing, then listed to commence just over six weeks later, could not proceed, so be it (paragraphs 47 and 50). Dobson 62. Dobson was a case in which the principles in Serco were endorsed and applied by John Cavanagh QC (as he then was), sitting in the EAT as a Deputy Judge of the High Court. Having cited the three sets of circumstances in which an employment tribunal can set aside an order previously made by a different employment tribunal in the same proceedings, as identified in Serco , he held, at paragraph 60:
“60. However, this Rule should be applied consistently with what is done in the High Court in the Civil Procedure Rules , and that means that the cases in which a subsequent Tribunal will set aside the original tribunal’s order will be rare and out of the ordinary. In my judgment, it is clear that the power is not akin to a right of appeal. If, as in this case, a second employment judge has come on the scene, the fact that the second employment judge thought that the first employment judge had been wrong is not a good enough reason in itself to set aside the prior order.”
The Principles Applied in this Case 63. Analysed by reference to the above principles, the following position is clear: 1) There had been no appeal from the order of Employment Judge Ryan and Employment Judge Sherratt was a judge of equivalent jurisdiction. 2) The parties had prepared their respective cases in accordance with the order of Employment Judge Ryan and there had to have been a material change in circumstances to warrant Employment Judge Sherratt’s reversal of that order; 3) In so far as is apparent in his reasons, Employment Judge Sherratt did not consider whether there had been a material change in circumstances since Employment Judge Ryan had made his orders, nor did he cite the line of authority summarised above. It is unclear whether he was even referred to the latter. Tribunals are creatures of statute and derive their powers from the relevant procedural rules. I agree with Mr Brochwicz-Lewinski that, if Employment Judge Sherratt was not purporting to invoke rule 29 of the 2013 procedural rules (whether or not expressly), the source of his power to make the order which he made has not been identified and does not exist. Try as she did to convince me that Employment Judge Sherratt’s order constituted no more than the proper exercise of judicial discretion in connection with the substantive issues before him, Ms Criddle did not succeed in that endeavour. 4) In fact, Employment Judge Sherratt was interfering with an earlier interlocutory order, which had to be “necessary in the interests of justice”, requiring a material change of circumstances since that order had been made, or that the earlier order had been based on material omission or mistreatment, or some other substantive reason necessitating the interference. Of those, X relies only upon the first alleged state of affairs as justifying Employment Judge Sherratt’s order. 5) The factors now asserted to constitute that material change are the availability of Caterham and X’s witness statement at the preliminary hearing. Whether or not they did so is a question of jurisdiction, to be decided by taking an objective view of the factual matrix (see Serco ). In my judgment, so viewed, neither constitutes the requisite change (whether considered in isolation or jointly with the other). Even allowing for the fact that Caterham itself had not been drawn to the attention of Employment Judge Ryan (albeit decided by the date of the hearing before him), it did nothing more than re-state the need for caution urged by earlier established authority (see above). If X had considered that Employment Judge Ryan had misunderstood or misapplied the law, the proper route by which to challenge his orders would have been an appeal. As to X’s witness statement, Employment Judge Sherratt did not have regard to it (or to any other witness statement). In any event, it is difficult to see how that statement (served in accordance with Employment Judge Ryan’s directions in relation to the issues which he had ordered to be determined at a preliminary hearing) could serve as a material change of circumstances. It made no difference to the nature of her case, namely that the various alleged acts of which she complained constituted a continuing act; alternatively, should be allowed to proceed following a just and equitable extension of the primary limitation period. 6) In those circumstances, Employment Judge Sherratt’s view that the preliminary hearing would entail no saving of hearing time, whether or not justified on the facts, was immaterial: it was not for him to make that decision, following the earlier order of Employment Judge Ryan and the question of whether the factors which he identified as tending against a preliminary hearing were legitimate concerns, justifying the exercise of his discretion to decline to determine the issues arising at a preliminary stage, does not arise. His disagreement with the approach which Employment Judge Ryan had adopted did not itself afford a good enough reason to set aside the earlier order (see Dobson ). 7) Thus, Employment Judge Sherratt was obliged to consider the substantive issues before him, arising from Employment Judge Ryan’s earlier orders. Instead, he revisited those earlier orders, in circumstances in which he lacked jurisdiction to do so. 8) For the sake of completeness, however, I reject Ms Criddle’s submission that, in determining whether E and Z had been involved in victimising X, as she contended by her claim and witness statement for the preliminary hearing, it would be material and relevant to consider whether they had harassed her. First, there is no pleaded victimisation claim against E and/or Z (see above). Secondly, and in any event, that is a submission which, if viable at all, ought to have been made (and, indeed, may have been made) to Employment Judge Ryan. Thirdly, as Employment Judge Ryan had recorded (at paragraph 4 of his reasons), the decision to convene a preliminary hearing reflected the fact that E and Z were unrepresented parties and would not be parties at all, were the tribunal to decide that it had no jurisdiction to hear the harassment claims. That remained the case before Employment Judge Sherratt. There is a significant difference between being a party to proceedings and giving evidence in connection with them. Further, any acts of harassment by E and/or Z would, of themselves, shed no light on whether L, through the acts of others, had victimised X by reason of her protected act. In all such circumstances, had it been necessary, I would have concluded that Employment Judge Sherratt’s exercise of any discretion which he possessed had been perverse, in particular at a point at which the parties had been ready to proceed with the substantive preliminary hearing and had attended for that purpose. 64. To be clear, the fact that Z has not herself appealed from the order of Employment Judge Sherratt is, in my judgment, immaterial. If the order of Employment Judge Ryan is restored, the original issues will be reinstated and will equally affect her. In any event, the tribunal cannot appropriate to itself jurisdiction to hear any claim against Z which it does not have (should that be its finding): Secretary of State for Health & Another v Rance [2007] IRLR 665 , EAT (paragraph 37). 65. Given the conclusions set out above, strictly, it is not necessary to consider whether the reasons given by Employment Judge Sherratt for his decision were inadequate, in the sense of being Meek -compliant, however I shall deal with the point briefly. Those reasons were set out in paragraphs 7 and 8 and have been cited above. Whilst compressed, they explained his rationale, albeit without setting out the particular submissions made by each party. I do not consider that this ground of appeal adds anything of substance to those which I have upheld above. Put simply, Employment Judge Sherratt was not entitled to revisit the orders of Employment Judge Ryan at all. Disposal 66. Having concluded that the appeals succeed, I turn to the appropriate disposal. 67. The proper course is that the orders made by Employment Judge Sherratt be set aside and those of Employment Judge Ryan restored. As I have concluded that no victimisation claim is pleaded against Z or E, only the second issue identified by Employment Judge Ryan is engaged in relation to each of them. Both issues are (at least potentially) engaged in relation to L. 68. Consistent with the approach adopted in Montali and in Dobson , in my judgment the proper course is that the preliminary hearing be listed to take place before an employment Judge other than Employment Judge Sherratt (irrespective of whether he has retired), for the reasons given by Mr Brochwicz-Lewinski. Ideally, that preliminary hearing will be listed, and the issues arising determined, within a timeframe which enables the full merits hearing to proceed in its existing slot, to determine such claims as remain extant, but without incurring any party in potentially unnecessary preparation time and cost in relation to that hearing before the outcome of the preliminary hearing is known. If that cannot be achieved, however, the existing dates for the full merits hearing will need to be vacated by the employment tribunal and the matter re-listed, as appropriate. Regrettable though that would be, if it is a necessary consequence of this judgment, so be it. Following the outcome of the preliminary hearing, it may become apparent that a shorter listing for a full merits hearing is required, in any event. [1] In the list of substantive issues annexed to Employment Judge Ryan’s order, the same date is given in relation to Z. In relation to E, the relevant date is said to be 12 th October 2018.

Cited in 1 later judgment