Can a tribunal make an employee choose their ‘best ten’ allegations in a discrimination claim?
Not usually, said the Employment Appeal Tribunal in Tarn v Hughes. Dr Tarn was a GP. She brought claims for sex and pregnancy discrimination. She had agreed a list of issues with the employer, which contained 21 acts of alleged direct discrimination, 19 of harassment and 6 of victimisation.
At a preliminary hearing, the employment judge told the employee to choose the most recent and serious events to be dealt with at a hearing, to a maximum of ten. He said she could rely on the other allegations as background information or they could be dealt with at a later hearing. The judge said dealing with all the allegations was not a proportionate use of tribunal resources. Dr Tarn appealed.
The Employment Appeal Tribunal agreed with the employee. Apart from striking out claims which have no reasonable prospect of success, a tribunal has no power to limit the claims a claimant can pursue. Dealing with a sample of claims might be difficult in discrimination cases where the whole picture is relevant, and claims are linked. Perversely, separating claims out into different hearings might result in repetition of evidence and more time being taken to reach a conclusion. This could increase costs rather than reduce them. In this case there was a list of issues agreed between the parties already. The allegations involved much overlapping evidence. The tribunal was wrong to impose those limits.
This decision might be disappointing for employers facing the scattergun approach of multiple allegations which span a long period of time. Employers should insist on agreed lists of issues to nail the employee down on the allegations. Applications for strike out and deposit orders can be a useful tool where certain claims appear weak.
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