Order limiting claims is perverse
The EAT has handed down judgment in Dr L Tarn -v- Dr N Hughes and Others, holding that the tribunal judge had been perverse in limiting the Claimant’s claims to her ten most serious and recent claims. The Claimant, a GP working in partnership with the Respondents, pursued various claims of sex and pregnancy discrimination, harassment and victimisation. A list of issues had been agreed by the parties which identified 30 separate acts. In a telephone preliminary hearing, the tribunal judge ordered the Claimant to select up to ten events for determination at the forthcoming full merits hearing. The Order stated that she could rely on her other complaints either by way of background or context, or, alternatively, she could pursue those matters as separate claims at a later hearing. On her application for reconsideration of the Order, the tribunal judge upheld his decision, citing HSBC Asia v Gillespie  ICR 192 (19 November 2011) where the EAT had given guidance on the appropriate use, for example, where the claimant had complained of a large number of incidents, of determining a sample of her complaints and reserving others for a later hearing if necessary.
The Claimant appealed, arguing that such an Order was ultra vires since the tribunal had no jurisdiction to make such a direction limiting the Claimant’s entitlement to an effective remedy for discrimination from the tribunal. She cited McKinson v Hackney Community College & Ors UKEAT/0237/11/JOJ (8 August 2011) and Franco v Bowling & Co Solicitors UKEAT/0280/09/DM as instances of the EAT overturning attempts by the tribunal to restrict the number of discrimination allegations brought by a claimant.
The Respondent maintained that the tribunal had a wide discretion to manage cases proportionately and relied upon Hendricks v Commissioner of Police  IRLR 96 in which Mummery L.J. spoke of the importance of ‘concentrating the most recent and serious’ complaints. The Order was in line with Gillespie and in no way prevented the Claimant from bringing any part of her claim as was the case in McKinson and Franco.
Her Honour Judge Eady acknowledged that the Tribunal had been careful not to strike out any part of the Claimant’s claims. However, she held that the wording of the Order, namely that the Claimant elect whether to rely upon those of her complaints exceeding the ‘ten most serious’ as background or as actual claims to be considered at a later stage, was potentially unfair. The Tribunal, in reaching this decision had also failed to consider the practical consequences of its Order. No cost or time saving would be achieved since it would inevitably need to hear the evidence in relation to the ‘non-selected’ complaints in order to understand the whole picture. In conclusion she found the Order to be perverse.
Amy Stroud represented the Respondent to the appeal.