Employment Cases Update

McKinson v Hackney Community College & Ors UKEAT/0237/11/JOJ

Date published: 09/09/2011

Appeal against various case management orders made against the claimant. Appeal allowed in part.

The claimant was claiming race discrimination and victimisation. His claim form contained substantial detail, running to 50 paragraphs, and included 4 respondents. At a case management discussion the Employment Judge made 3 orders, that the claimant should: 1) file and serve a schedule of no more than 6 incidents of direct discrimination and no more than 3 incidents of victimisation; 2) file details of every protected act upon which he relied for his claims for victimisation; and 3) make a formal application to amend his claim in relation to the 4th respondent. The claimant complained that the first order imposed a restriction on the matters about which he may claim, for which there was no warrant in law. There were more than 6 potential incidents of direct discrimination and more than 3 incidents of victimisation; if he was restricted to these at the final hearing then in effect a significant part of his claim was struck out. As to the second order, the claimant claimed that the respondents already knew the protected act and it was perverse and unfair to order him to give particulars and contrary to the overriding objective. The claimant claimed that the third order was unnecessary because he had already sent the Tribunal an email which provided specific detail of the 4th respondent and the EJ should and could have dealt with it. No further application was required.

The EAT partly upheld the appeal in respect of the first order, and deleted the part which restricted the claimant from listing the incidents; there was no power to require a claimant in effect to self-select which of a number of complaints, all encompassed within a claim form, he will pursue at the final hearing. However, they ruled that the EJ was entitled to ask the claimant to identify in schedule form precisely what his complaints were since it was too difficult to distill them from the 50 paragraphs of narrative. The second order was upheld; the EJ was right to order particulars, a victimisation claim requires a protected act to be identified and the nature and date of the act was important. The EAT granted leave to amend his existing claim in respect of the 4th respondent.

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Appeal No. UKEAT/0237/11/JOJ

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 8 August 2011

Before

HIS HONOUR JUDGE RICHARDSON, MR A HARRIS, MR J R RIVERS

McKINSON (APPELLANT)

HACKNEY COMMUNITY COLLEGE & OTHERS (RESPONDENTS)

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant
MR McKINSON (The Appellant in Person)

For the Respondents
MR R OWEN-THOMAS (of Counsel)

Instructed by:
Archon Solicitors
5 Martin Lane
London
EC4R 0DP

SUMMARY

PRACTICE AND PROCEDURE – Case management

Various case management orders made at a case management discussion upheld.

Part of one order, however, deleted. The order in effect required the Claimant to select no more than six incidents of discrimination and three incidents of victimisation for inclusion in a Schedule, and provided that only these allegations (together with allegations relating to dismissal) should be entertained at the final hearing. The Claimant's detailed claim form appeared to allege a greater number of incidents of discrimination and victimisation. There was no power to require a Claimant to select part only of his case in this way.

HIS HONOUR JUDGE RICHARDSON

1. This is an appeal by Mr McKinson ("the Claimant") against aspects of a case management order made by Employment Judge Weiniger at London Central. The order was made at a hearing on 25 March 2011. It was formally sent out on 12 April 2011.

2. There is an appeal to the Employment Appeal Tribunal only on a question of law: see section 21(1) of the Employment Tribunals Act 1996. Case management orders seldom give rise to questions of law. They are made by employment judges in the exercise of wide powers given by rule 10 of the Employment Tribunal Rules 2004 (Appendix I to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004).

The background

3. The Claimant was employed by Hackney Community College ("the First Respondent") as a lecturer with effect from 14 April 2007. By September 2009 he was employed half time in the College's sixth form centre, teaching mainly religious studies, and half time as a co-ordinator in the foundation studies department. During 2010 he raised grievances in relation to various issues arising out of his employment. On 31 October 2010 he was made redundant.

4. In January 2011 the Claimant presented a claim form (an ET1) to the Tribunal. He set out a range of issues which he said amounted to race discrimination and also "victimisation of the claimant following the claimant raising a grievance on race discrimination". Substantial detail was given, running to some 50 paragraphs.

5. The claim form did not tick the box for unfair dismissal, but it is common ground that an ordinary claim for unfair dismissal was also encompassed within the details given: see paragraph 10 of the case management discussion order.

6. The claim form named three additional respondents, all members of staff of the First Respondent. One of these – the Fourth Respondent, a member of the First Respondent's HR team – did not figure by name in the details of the claim given by the Claimant.

7. The Respondents served a joint response form (an ET3). The Respondent's case for saying that the redundancy was fair was set out. The allegations of race discrimination and victimisation were denied. It was said that many were out of time. It was also said that "during his employment with the College, the Claimant did not at any stage make any allegation of race discrimination against any of the Respondents".

8. It was against this background that the case management discussion came on before Employment Judge Weiniger. The Claimant's grounds of appeal, as focussed by his skeleton argument and submissions today, concern three main areas. I will re-order them in what I regard as the order of their real importance.

Order for particulars of discrimination and victimisation

9. The Employment Judge ordered:

"12. Apart from the matter of dismissal which I have addressed above, following discussion on the matter, I direct that the Claimant shall by 6 May 2011, file and serve a schedule of no more than six incidents of direct discrimination; and no more than three incidents of victimisation, and unless permission for amendment is sought and obtained, no other allegations than these and the allegations relating to dismissal will be entertained at the Final hearing. The allegations shall be set out in chronological order separately in respect of direct discrimination and victimisation, shall be sequentially numbered, and each shall be collated in accordance with the following details:

(i) Date of incident, or if a period is contended for, the start and end date.

(ii) The nature of the allegation, that is to say whether direct discrimination or victimisation. It is not necessary at this stage for the Claimant to identify whether the statutory resource is Race Relations Act 1976 or Equality Act 2010 as that is a matter which will depend on the dates provided and the transitional provisions which govern that. However it is recorded that all the allegations in question in this case relate to race.

(iii) Details of each itemised allegation. In not more than 50 words for each allegation the Claimant should set out full details of the allegation, describing the act, omission or conduct complained of, identifying any documents which relate thereto, and if words were used setting out the gist of those words.

(iv) Alleged perpetrator. In respect of each allegation the Claimant shall set out the identity of the alleged perpetrator.

(v) Witnesses. In respect of each allegation the Claimant shall identify all witnesses to the conduct complained of.

(vi) Comparator. In respect of each allegation where a comparator is appropriate the Claimant shall set out the comparator relied on, and if a hypothetical comparator is relied on he should set out the characteristics and circumstances which he contends are appropriate.

(vii) All allegations which are made out must be sourced from the Claim Form and from the amendments for which permission has been given as recited above."

10. The Claimant's first complaint about this order is that it imposes a restriction on the matters about which he may claim for which there is no warrant in law. There are more than six potential incidents of direct discrimination and more than three incidents of victimisation. If he is restricted to these at the final hearing then in effect a significant part of his claim is struck out. As to the management of claims involving a number of issues, which may together be relied on as constituting an act extending over a period, he refers to and relies on Hendricks v Commissioner of Police of the Metropolis [2003] ICR 530 at paragraphs 52 and 53.

11. The Claimant's second complaint about this order is that it requires him to set out again what he has in reality and in substance set out in the claim form. The order is, he submits, quite unnecessary; it was perverse and contrary to natural justice, because the Employment Judge did not consider his side of the case fully.

12. In response Mr Richard Owen-Thomas on behalf of the Respondents argues that the Employment Judge acted within his discretion to limit the case in this way and to clarify the precise allegations which the Claimant was making. He lays emphasis on the importance of case management and submits that the case management decisions of employment judges ought to be upheld. He too relies on Hendricks at paragraphs 52 and 53.

13. My conclusions on this part of the case are as follows.

14. Case management of discrimination claims is a notoriously difficult exercise, particularly where the allegations are numerous and extend over a significant period.

15. 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. Further, it is extremely difficult for an employment tribunal to read into and conduct a final hearing without a clear understanding of what is and is not being run at the hearing.

16. Once it has been established just what claims are being made, it should then be possible to identify what is in issue. A list of issues is a tool of great value in a discrimination claim.

17. Once it is plain what the potential issues are, the case can (if necessary) be further case-managed. How much case management is required will depend on the individual case. In some cases – particularly where there are a great number of issues, over many years, significant further case management may be required. An employment judge may encourage the parties to concentrate on issues which really matter as suggested in Hendricks; in an appropriate case (although there may not be many of these) an employment judge may select issues to be tried first, if this can be done fairly to both parties. But case management must take place within the rules.

18. Turning to this case, the Employment Judge was in my view entitled to ask the Claimant to identify in schedule form precisely what his complaints of discrimination and victimisation were. The claim form ran to 50 paragraphs and is in the nature of a narrative. The complaints of discrimination and victimisation have to be distilled from it. The Employment Judge was entitled to say to the Claimant that he should distill them; and it is in his interests as well as those of the Respondents that he should do so. It is not satisfactory to leave a Tribunal at a final hearing to work out from a narrative claim form precisely what complaints are being put and how. I see nothing perverse in this part of the Employment Judge's order. Nor was it in any way in breach of natural justice - at a case management discussion there are limits to the extent to which an employment judge is required to explore in detail the case of each party. The order for a schedule was good case management, likely to be of benefit to both sides and the Tribunal in due course.

19. However, in my judgment the Employment Judge erred in law in limiting what would be considered at the final hearing to no more than six incidents of direct discrimination and no more than three incidents of victimisation. The claim form on its face appears to encompass more than six incidents of direct discrimination and more than three incidents of victimisation. Moreover incidents of victimisation and discrimination may overlap; there is not necessarily any watertight compartment between them. There is no power to require a claimant in effect to self-select which of a number of complaints, all encompassed within a claim form, he will pursue at the final hearing. This part of the Employment Judge's order must be deleted.

20. I have said that, once issues are identified, there may need sometimes to be further case management along Hendricks lines. Speaking for myself, I doubt whether this case is so complex that a great deal of further case management will be required, once the issues are identified. If it is, either party may apply for a further case management discussion.

Order for particulars of protected act

21. Paragraph 9 of the Employment Judge's order provides –

"By 6 May 2011 the Claimant shall serve but not file the dates and details of every protected act upon which he relies for his claims for victimisation under Race Relations Act 1976 or Equality Act 2010. He shall also at the same time provide copies of any documents which relate to the protected act. If any correspondence or documents are relied on as a protected act the Claimant shall specifically identify the words used within those documents upon which he relies as qualifying any relevant document as a protected act under the Race Relations Act 1976 and/or the Equality Act 2010."

22. The Claimant argues that the Respondents already know the protected act. He refers to a report produced after he left which quotes him as perceiving certain actions to be "unfair to the point of witting or unwitting discrimination". He says it was perverse and unfair to order him to give particulars and contrary to the overriding objective.

23. In my judgment the Employment Judge was right to order particulars. A victimisation claim requires a protected act to be identified: see, for example, section 27(2) of the Equality Act 2010. The nature and date of the act will be important. It is not enough for the claimant to say that at some point after he left the person reporting on his grievance recognised that he was claiming discrimination. The response form puts the matter in issue and it is highly desirable that particulars should be given. The Claimant has explained his case to me today; I see no reason why it should not be put in writing and every reason why it should be.

Amendment

24. The Claimant sent an email to the Tribunal on 21 February 2011 setting out some details, which he described as "Additional Information" relating to the Fourth Respondent. He said:

"The information below is not new information but provides the specific detail of [the Fourth Respondent's] actions cited in the claim. Please ensure that this information is attached to the claim as additional information."

25. The Employment Judge in effect required a formal application to be made for an amendment.

26. The Claimant argues that he had already made an application for permission to amend by his email dated 21 February; that the Employment Judge could and should have dealt with it; and that no further application was required.

27. What the Claimant wanted to add was in reality detail of his existing claim, and Mr Owen-Thomas has rightly accepted today that it is appropriate to grant leave to amend. I will do so, exercising my power under section 35 of the Employment Tribunals Act 1996.

28. The Claimant also wishes to complain about a comment the Employment Judge made in the course of granting two other amendments to the claim form. The Employment Judge thought that the Respondents did not know about two earlier emails. He says the Respondents did. But there is an appeal to the Appeal Tribunal only on a question of law arising out of a decision. The only decision here was in the Claimant's favour; and no error of law arises.

29. In an effort to keep the hearing date in November, I will also amend the dates for certain activities to take place which have held fire pending resolution of this appeal. The Claimant agrees that he will provide the required particulars by 22 August; the Respondent will respond to the particulars by 12 September, at which point the issues for the Tribunal should be clear; disclosure will take place by 26 September; and witness statements will be exchanged by 10 October.