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Chambers & Partners
02/08/2018

Nicola Newbegin successful in Dr Tarn v Dr Hughes & Ors

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Nicola Newbegin, instructed by Fiona McLellan of Hempsons, appeared for the successful Claimant (Appellant) before the EAT in a case in which a decision of the ET to limit the number of claims of discrimination that the Claimant could bring at one hearing was held by the EAT to be perverse.

The EAT has handed down its judgment in the case of Dr Tarn v Dr Hughes & Ors UKEAT/0064/18/DM.

The Claimant brought proceedings before the ET for sex and pregnancy discrimination, harassment and victimisation.  Prior to a preliminary hearing, the parties had agreed a list of issues which identified 30 separate acts about which the Claimant was making a complaint.  At the preliminary hearing, having listed the case for six days, the ET ordered the Claimant to select up to ten events for consideration at that hearing.  In respect of the other matters the Claimant was permitted to rely upon them either as background at that hearing or to pursue those other matters separately, at a later hearing.

The Claimant appealed to the EAT.  Allowing the Claimant’s appeal, the EAT held that the ET’s order had been perverse:  the ET had failed to engage with the very real difficulties arising from the course its order required.  To the extent that the ET was seeking to make the claimant choose whether to rely on matters (other than the ten acts) as part of the background or at a later hearing, there was nothing in the ET’s decision that suggested that it had considered the potential unfairness of requiring the Claimant to make such an election.  If the Claimant was on the other hand to be permitted to rely upon the other allegations as background at the first hearing and then again at a later hearing, there would be no benefit in terms of time and cost.

Of more general importance, the EAT at paragraph 28 provided guidance about the exercise of case management functions by ETs at preliminary hearing:

  • save where a claim can properly be said to have no reasonable prospect of success, the claims brought by a claimant will stand to be determined at a full merits hearing on the evidence;  it is not open to the ET to otherwise limit the claims a complainant can pursue;
  • whilst there is a power to separate out a sample of claims or issues to be dealt with at a separate hearing, this does not mean that this is a course that should be adopted save in those cases where it is clear that this would not endanger the just determination of the case – something that might be difficult to assess at a PH;
  • the real problem with separating out issues to be dealt with separately is that 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;
  • moreover the separate determination of selected issues or allegations may not be a proportionate use of time and careful regard would need to be had as to whether it really would avoid delay and save expense in those proceedings.

To read the judgment, please click here.

 

discrimination, EAT, nicola newbegin, employment, sex discrimination, pregnancy discrimination, harassment, victimisation

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