120: Guidance on a Tribunal’s power to order a claimant to limit the number of allegations

In the recent case of Dr Tarn v Dr Hughes and others, the Employment Appeal Tribunal (EAT) held that an order of the Employment Tribunal to limit the number of discrimination allegations in a claim was perverse.

Dr Tarn issued claims for sex and pregnancy discrimination, harassment and victimisation. Prior to a preliminary hearing, a list of issues was agreed between the parties which contained 21 alleged acts of direct discrimination, 19 alleged acts of victimisation, and six of victimisation, with further complaints included as background. At a preliminary hearing the Employment Judge ordered Dr Tarn to select up to ten of the most recent and serious allegations to rely on. He also directed that she could rely on the remaining allegations as background or context, or she could pursue those matters at a later hearing.

The EAT allowed Dr Tarn’s appeal on the grounds that this order was perverse. The Tribunal had failed to consider the potential unfairness in requiring her to choose whether to pursue her remaining allegations as claims at a future hearing, or simply to rely on them as context for the ten sample allegations. There had been an agreed list of issues, and the respondent had not suggested that it could not understand or respond to her case. In any event, the Tribunal’s order would not necessarily save time or costs.

The EAT also set out general guidance for dealing with large discrimination claims at a preliminary stage:

• the starting point should be to identify precisely what claims are made and on what basis, ideally with a list of issues;
• a Tribunal cannot prevent a claimant from pursuing a properly arguable claim;
• it may be possible in some cases to separate out a sample of complaints or issues which could usefully be heard prior to the remaining allegations. However, it might be difficult for the Tribunal to assess at a preliminary stage whether this would be a fair approach. In many discrimination claims, the entire picture needs to be considered before reaching a conclusion on whether there has been discrimination in respect of any particular allegation; and
• determining selected allegations or issues separately might not be the proportionate approach, for example, it could increase costs and delay, and involve duplication of evidence.

Employment Tribunals have a broad discretion in case management, subject to the overriding objective to manage cases fairly and justly, taking time and costs into account. This case clarifies that Tribunals do have a power to order claimants to limit their allegations in discrimination claims. However, the EAT also explained why it may not be appropriate to use that power. For example, in this case, it was questionable whether the Tribunal’s order would save costs or time. Unless both parties consent, it seems that a sample-based approach to hearing discrimination claims will rarely be appropriate.