The EAT has provided welcome guidance on the power of the Tribunal to order a claimant to effectively limit the number of allegations pursued at a hearing by relying on sample allegations only (with the remainder to be pursued at a later date, if the sample succeed).
In this case, the Claimant made multiple allegations of discrimination (21 alleged acts of direct discrimination, 19 alleged acts of harassment and 6 alleged acts of victimisation, plus additional complaints included as background). She was told by the Tribunal to select the ten most recent and serious allegations for consideration, with the remaining allegations either included as background or held over to be pursued at a subsequent hearing.
The EAT held that the Tribunal’s approach was perverse in circumstances where there was an agreed list of issues and no suggestion that the respondent could not understand or respond to the claimant’s case. The EAT noted that the Tribunal had no power to stop a claimant from pursuing a properly arguable claim. Moreover, in discrimination cases, allegations are very often interconnected and need to be considered in the round before findings can be made. The EAT also rejected the idea that a sample approach would always reduce time and costs, particularly where a second hearing was subsequently pursued.
Why this matters
It is clear that despite the Tribunal’s broad case management powers, it will only be in exceptional cases where the sample approach is adopted and, importantly, this is likely to require the claimant’s express consent. If no such consent is forthcoming, the respondent’s focus should be on ensuring that the claimant’s claim is sufficiently clear and properly reflected in a well drafted list of issues.