Practical Law

There are real difficulties for everyone involved (including the tribunal) in dealing with diffuse claims of discrimination, which indiscriminately allege various different types of discrimination, harassment and victimisation, and take a scatter gun approach to the facts underlying such claims. Such difficulties led the Court of Appeal to say that “Attempts must be made by all concerned to keep discrimination proceedings within reasonable bounds by concentrating on the most serious and the more recent allegations.” (Hendricks v Commissioner of Police [2003] IRLR 96, Mummery LJ.)

As we will see, that initial comment led to some employment judges taking increasingly drastic (and in some cases draconian) case management decisions. The EAT’s decision in Tarn v Hughes UKEAT/0064/18DM has made such interventions much less likely. This blog considers what has happened since Hendricks, the impact of Tarn, and what respondents can do now to try and limit unwieldy discrimination claims.

HSBC v Gillespie

The theme of keeping discrimination proceedings within reasonable bounds was picked up by Underhill J in HSBC v Gillespie [2011] IRLR 209. He noted that, while the tribunal has no power to prevent a claimant prosecuting a properly arguable claim, that does not mean that all of the allegations have to be heard at one hearing. It is perfectly proper for an employment judge to discuss with the parties at a case management preliminary hearing whether certain claims could be heard first (with the balance stayed, theoretically to be determined at a subsequent hearing, but in the more or less confident expectation that such subsequent hearing is unlikely to be necessary once the key allegations have been determined).

Underhill J went on to say that, in principle, even in the absence of agreement from the parties, a tribunal has the power to hive off claims which it regards as secondary or repetitive or otherwise unnecessary, to be dealt with at a subsequent hearing. However, he included some strong words of caution, noting that there may be considerable factual overlap between different allegations of discrimination and that “claimants may be able legitimately to argue that the cumulative effect of a large number of claims has an evidential value which would be unfairly weakened if they were separated.” He therefore stressed that a direction hiving off claims “should only be followed after most careful consideration and where the advantages of doing so are clear.”

What happened after Gillespie?

In my experience, in the years since 2011 a number of employment judges, purporting to rely on Gillespie, became overly fond of requiring claimants to cut down their claims of discrimination, without paying any real regard to Underhill J’s words of warning, or to the artificiality of hiving off claims. I have seen examples where the rulings seem to result in real injustice: it could be particularly difficult for litigants in person to identify what their best claims actually were. Even where both parties were represented, the approach could create real issues. By way of example, some years ago I acted for a claimant who was bringing sex discrimination and victimisation claims. There was an agreed list of issues which both parties were happy with. Notwithstanding that, during a telephone preliminary hearing an employment judge determined that my client (who was not on the call) had to choose her ten best and most recent allegations, and that the remainder would be hived off. This was in the face of strong objection from me. The employment judge went further than that, and held that my client was prevented even from referring to evidential matters which formed the subject of the claims in her claim form that occurred prior to a specified date. No reasons were given for the date decided on, other than that it was “in accordance with the overriding objective”. The effect of that ruling was that my client was prevented even from giving evidence about the circumstances in which she did things which the employer accepted were protected acts, or the manner in which the employer reacted to her protected acts. That would seriously and unfairly have prejudiced her victimisation claims. An appeal to the EAT was listed for a full hearing, but the case settled prior to that hearing. That was far from an isolated example of the sort of drastic case management decisions that I have seen in the years since 2011.

What the EAT decided in Tarn

Both sides were professionally represented in Tarn. There was an agreed list of issues containing 21 acts of alleged direct sex/pregnancy discrimination, 19 acts of alleged harassment and six acts of alleged discrimination (with certain other matters said to be relied on by way of background). The respondent did not raise any concerns with the number of allegations, but at a telephone preliminary hearing an employment judge ordered that the claimant identify “the most recent and serious ten (maximum) events relied upon”. The order in Tarn did not prevent the claimant from relying on the other matters by way of background.

HHJ Eady QC allowed the appeal against the tribunal’s ruling. Holding that the tribunal did have power to direct that only a sample of claims would be heard at a first hearing, she said that it is not a course that should normally be adopted, for three key reasons:

• It is something that can only be done “where it is clear this would not endanger the just determination of the case”. This is likely to be difficult for the tribunal to assess at a preliminary stage.
• In many discrimination cases it is necessary to consider the entire picture before any conclusion can be drawn as to whether or not there has been unlawful discrimination in respect of any particular allegation. Hiving off claims prevents the proper consideration that is required in what is a highly fact sensitive arena.
• The separate determination of selected allegations or issues may not actually be proportionate. If all of the same evidence is going to have to be canvassed as part of the background, hiving off claims may not avoid delay or save expense.

It is to be hoped that the EAT’s judgment will see an end to what risked becoming an unjust practice by some employment judges of artificially limiting claims.

What to do with the unwieldy claim now?

That is not to say that respondents or tribunals are now unable to take steps properly to manage and control diffuse discrimination claims. On the contrary, there are a number of steps respondents can and should consider in all such cases.

Draft a clear list of issues

In unwieldy claims (especially where the other side is a litigant in person), a properly drafted list of issues (in advance of the first preliminary hearing) is invaluable. Respondents are often understandably reluctant to “help” the claimant to clarify the claims. However, in my experience, a list of issues which takes a reasonable approach to the claims which the respondent believes the claimant is seeking to bring, but limits them to those which are properly particularised is often far more effective in limiting a claimant’s claims than either

• leaving it to the claimant to attempt to clarify in further and better particulars (which often lead to even more claims, and frequently to less clarity); or
• allowing the claimant to expand on their claims orally with an employment judge who does not have the benefit of a professionally drafted list of issues.

If faced with an employment judge who is reluctant to grapple with the detail of the claim, or sufficiently to pin the claimant down on the details, it is worth citing the EAT’s judgment in McKinson v Hackney Community UKEAT/0273/11:

“The first task always is to identify precisely what claims are being made and on what basis. This assists the claimant: certain elements have to be established, and if the claimant has not addressed his mind to them before the hearing, it may be too late to do so at the hearing. Moreover it is a necessary protection for the respondent: allegations of discrimination are serious matters, and a respondent is entitled to know precisely what the allegations are which must be faced.”

Application for strike out

Consider making an application for strike out. A properly drafted list of issues often helps to demonstrate the weaknesses in a claimant’s claim (for example, victimisation claims where the alleged detriment occurred prior to the protected act, or reasonable adjustments/indirect discrimination claims where the provision, criterion or practice (PCP) does not work as a matter of law). It is often possible to persuade employment judges to strike out further claims, particularly where the claims are unmanageable: while it is trite that discrimination claims should only be struck out in the clearest of cases, as Langstaff P said in Chandhok v Tirkey [2015] IRLR 195 “there may still be occasions when a claim can properly be struck out – where, for instance … on the case as pleaded, there is really no more than an assertion of a difference of treatment and a difference of protected characteristic”.

Obtain a deposit order

The “little reasonable prospect of success” test for obtaining a deposit order provides a lower bar for a respondent than an application for strike out (where the tribunal must find that there is no reasonable prospect of success). The mischief that some employment judges were trying to cure by ordering claimants to pick their strongest claims was often to weed out the weaker claims (and therefore save the parties and the tribunal the time and expense of dealing with those allegations). The proper way to do that is through deposit orders, given the strong costs warning that comes with a deposit order. The submission that, if the claimant wishes to continue with diffuse claims a number of which are obviously weak, then the claimant should have well in mind the costs risk of pursuing the weaker claims is a powerful one. Remember that the tribunal has power to make a separate deposit order in relation to each different allegation of discrimination. In practice, many claimants will not pay the deposit(s) on the weaker claims, cutting down the number of allegations that the parties and the tribunal need to grapple with.

Hiving off claims

In the right case, there will still be room for an order that certain claims should be hived off. By way of example, faced with a claim where there is a long period of time between one set of allegations and another, but in circumstances where the claimant may be able to establish a continuing act if the later allegations are in time, on the right facts it might be appropriate to hive off the earlier claims.

So, in conclusion, what in my experience was the increasingly common but often unjust use of orders forcing claimants to choose their “ten best” allegations is likely to be a thing of the past, save in exceptional circumstances. However, all is not lost for those faced with unwieldy discrimination claims, who should take advantage of the other weapons in a respondent’s arsenal where possible.