Many employers will be familiar with the difficulties which arise when an employee alleges numerous legal breaches, citing large numbers of incidents. In the case of Tarn v Hughes & Ors, a GP claimed pregnancy and maternity discrimination, alleging 46 legal breaches of three different kinds. The tribunal was asked to decide 180 issues.
At a preliminary hearing, the ET ordered Dr Tarn to provide a sample of the ten most serious and recent allegations to pursue. It said that she could rely on the other events as background or context to the ten she chose. The tribunal ordered that if she wanted to pursue claims for the allegations which were not in the top ten, she would have to do so at a later hearing.
Dr Tam appealed against this and the EAT has upheld her appeal. The EAT agreed that there are circumstances where the ET can limit claims in this way, but that these circumstances are the exception rather than the rule. In this case, the EAT found that limiting the claims in this was perverse.
The important points to note are:
- There may be cases where it is possible to separate out a sample of complaints to be heard in advance;
- It can be difficult for the ET to assess at a preliminary stage whether this risks endangering the just determination of the case;
- Discrimination cases often require consideration of the overall picture before drawing conclusions about whether or not a particular allegation amounts to discrimination, making the sample approach particularly problematic; and
- Dealing with a sample of complaints first might increase cost and delay, which is not in either sides’ interest.
Of course, this does not mean that the ET will simply wave all claims through. The ET has the power to strike out claims which have no reasonable prospects of success or to order employees to pay a deposit where claims appear to have little chance of succeeding.