EAT PRACTICE AND PROCEDURE
PRACTICE AND PROCEDURE – Case management
PRACTICE AND PROCEDURE – Preliminary issues
On 12 March 2015, at a telephone Case Management Preliminary Hearing, Employment Judge Coles ordered that there be a Public Preliminary Hearing on the issue of the length of service of the Respondent (‘the Coles Order’) and directed that the hearing take place at Southampton on 7 July 2015. Due to various difficulties it did not take place and instead that date was used for Judicial Mediation, which was unsuccessful. In the meantime on 15 May 2015 the parties had agreed a list of issues identifying some 96 issues. On 4 October 2015 Regional Employment Judge Parkin revoked that order on the basis that the list of issues was a ‘material change in the circumstances’ and that it was ‘necessary in the interests of justice’ to do so.
On the Respondent Employer’s appeal, after considering the position under the CPR and the authorities of Tibbles v SIG plc [2012] EWCA Civ 518 and Thevarajah v Riordan and others [2014] EWCA Civ 14 and the position under the Employment Tribunal Rules 2001, 2004 and 2013 and the authorities of Maurice v Betterway UK Ltd [2001] ICR 14, Goldman Sachs Services Ltd v Montali [2002] ICR 1251, Onwuka v Spherion Technology UK Ltd [2005] ICR 567, Hart v English Heritage (Historic Buildings and the Monuments Commission for England) [2006] ICR 655 and Newcastle upon Tyne City Council v Marsden [2010] ICR 743 and the relationship between the CPR and the Employment Tribunal Rules and the authorities of Governing Body of St Albans Girls’ School v Neary [2009] EWCA Civ 1190, [2010] ICR 473 and Harris v Academies Enterprise Trust and others UKEAT/0097/14/KN and UKEAT/0102/14/KN it was held that;
(i) The Employment Tribunal Rules must be taken to have been drafted with the principle of finality and certainty of decision and orders and the integrity of judicial decisions and orders in mind with the result challenges to an order would normally be directed to an appeal to a Tribunal of superior jurisdiction and seeking the same Judge or another Judge of equivalent jurisdiction to look again at an order or decision, save in carefully defined circumstances, should be discouraged;
(ii) the expression ‘necessary in the interests of justice’ in Rule 29 should be so interpreted and variation or revocation of an order or decision will be necessary in the interests of justice where there has been a material change of circumstances since the order was made or where the order has been based on either a misstatement and there may be other occasions, which it is unwise to attempt to define but these will be ‘rare . . [and] . . out of the ordinary’;
(iii) whether there has been a material change of circumstances raises an issue of the jurisdiction to make an order and the list of issues in this case did not constitute a material change of circumstances;
(iv) alternatively, if, contrary to iii above, a material change of circumstances was a matter of discretion only, the decision that the list of issues constituted a material change of circumstances was outwith the ambit of reasonable disagreement and the discretion had been erroneously exercised.
Consequently, the appeal was allowed and first decision restored.
References: [2016] UKEAT 0330 – 15 – 1301
Links: Bailii
Judges: Hand QC HHJ
Jurisdiction: England and Wales
Last Update: 16 October 2020; Ref: scu.559014
