Is Ordering a Claimant to Limit Their Claims Perverse?

In the case of Tarn v Hughes & Ors, yes it was.

In this case, the Employment Appeal Tribunal (EAT) held that the Employment Tribunal’s order requiring the Claimant to limit her claims to the ten most serious and recent claims was perverse.  

The Claimant, Dr Tarn, was a GP who brought various claims of sex and pregnancy discrimination, harassment and victimisation against her employer.

Before the preliminary hearing, the parties had agreed a list of issues which identified thirty separate potentially discriminatory events. However, at the preliminary hearing, having listed the case for six days, the Employment Tribunal ordered the Claimant to select a maximum of the ten most recent and serious events to rely upon. The Claimant was allowed to rely on the other the events for background or context or she could pursue the other matters as separate claims at a later hearing.

The Claimant appealed.

The EAT allowed the appeal, holding that the Employment Tribunal had failed to have regard to the practical consequences of the order and the potential unfairness in requiring the Claimant to elect whether to rely on the ‘additional claims’ as either background matters or as actual claims at a later hearing.

From a practical perspective, there would be no benefit in terms of time or cost savings as the Tribunal would need to hear the evidence in relation to the other claims not selected in any event. The Tribunal had failed to consider how a fragmented approach furthered the overriding objective to deal with cases justly and fairly.

The EAT stated that save in cases that have no reasonable prospect of success, it is not open to the Employment Tribunal to limit the claims a complainant can pursue as this would restrict their access to justice and potentially deny an effective remedy in cases of unlawful discrimination. Even though it may be possible in some cases to separate out a sample of complaints or issues, this does not mean that this is a course that should be adopted, except in those cases where it is clear this would not endanger the just determination of the case.

This case highlights the importance of discrimination cases and the need for Tribunals to consider the bigger picture when conducting case management.

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