The Employment Appeal Tribunal has recently held that the Employment Tribunal should not have limited a claimant to just her top ten discrimination claims after she had cited a large number of events to be considered at the final hearing.
Dr Tarn brought a claim for sex, pregnancy and maternity discrimination against her GP partnership but had cited 46 specific incidents, which she said amounted to discrimination. Due to the various legal tests for these allegations, the Employment Tribunal was asked at a preliminary hearing to agree to a list of issues running to 180 issues. This would mean that the Tribunal at the final hearing would need to hear and debate submissions on all of these issues.
Employment Tribunal decision
As a result, the judge ordered Dr Tarn to focus her claim on just the ten most serious instances of discrimination for the final hearing. The Tribunal judge held that she could rely on the other instances as evidence for the main ten events rather than bring them as their own specific incidents. They held that if she wanted to bring claims for the other allegations then she would need to pursue those at a later hearing.
The Employment Tribunal has the power to suggest that a claimant focuses on their main claims under the “reasonable bounds test”. This test states that if a claimant is looking to rely on a large number of discrete incidents of discrimination but that the case can be fairly tried by reference to a sample of these events only then it will be more efficient to do this.
Employment Appeal Tribunal decision
However, the Employment Appeal Tribunal overruled the Tribunal’s decision to rely on this test in this case. They explained that it should not be the norm for discrimination claims to be restricted in this way. They held that this should only occur in exceptional circumstances. To limit Dr Tarn’s claims here would be “perverse” as it did not appear to factor in the “overriding objective” of dealing with cases justly and at a proportionate cost.
The Employment Appeal Tribunal found that while the other aspects were not struck out entirely, it would be unfair for the claimant to have to rely on just ten events for the final hearing as this may give a fragmented picture of the claim as a whole. There was a risk that this could make the claimant’s case less likely to succeed.
From a costs perspective in some cases it may be beneficial and save costs but in this case it was not clear in this case what advantage this would have as the Tribunal at the final hearing would still be required to hear evidence on the whole range of events and, therefore, would have to make findings on that in any event. This would, therefore, take a similar amount of time to review and so would be unlikely to even save time and cost.
It is difficult to fully assess the merits of all allegations at a preliminary hearing and sampling can lead to aspects being missed when reviewing the claim as a whole. Rather than attempt to take a shortcut by taking a sample only to save costs, it can actually be more costly if the decision based on samples is later appealed.
Discrimination cases of this type can be difficult to deal with for the parties involved. The number of events can make it a very time-consuming process to respond to. Following this decision, employers can also consider other ways of simplifying the claim such as having aspects of the claim struck out for being out of time or having no reasonable prospect of success rather than seeking to rely on the reasonable bounds test.
Find out more
If you would like to find out what goes on at an employment tribunal then you can join Boyes Turner’s Employment Team and barristers from 3PB on 16 October 2018 to find out at our mock tribunal training course.
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