Mark Shulman, Consultant Solicitor at Keystone Law

CASE MANAGEMENT
Revocation of a Case Management Order
Under Rule 29 of the ET Rules "…A case management order may vary, suspend or set aside an earlier case management order where that is necessary in the interests of justice..."

Can a case management decision made by one EJ be revoked by a subsequent EJ? Only in very limited circumstances the EAT decided in [Serco v Wells ]()UKEAT/0330/15/RN.

Background
An EJ made a Case Management Order ("CMO") listing a preliminary hearing to determine the discrete issue of the Claimant's length of service. Subsequently, the parties agreed a list of 96 separate issues for determination at a full hearing and the Regional EJ then revoked the original CMO because "…there had been a "material change" since the original order, namely "the preparation and agreement by the parties of the very significant list of issues… ".

The Respondent appealed to the EAT on the basis that under rule 29 of the ET Rules 2013, the second EJ could vary, suspend or set aside an earlier case management order only where it was "necessary in the interests of justice" to do so.

Certainty and finality in litigation
The EAT recognised that the topics of certainty and finality in litigation and of the integrity of judicial orders and decisions are both antique and far-reaching. Various case authorities have considered the extent to which the procedure in ETs is to be regarded as controlled by the procedure in the general civil jurisdiction.

Part 3.1(7) of the Civil Procedure Rules ("CPR ") provides that:

"(7) A power of the court under these Rules to make an order includes a power to vary or revoke the order."

The scope of that Rule was considered in Thevarajah v Riordan and ot*hers [2014] EWCA Civ 14, when reference was made to the earlier Court of Appeal decision in Tibbles v SIG plc* [2012] EWCA Civ 518 which confirmed that in relation to the revocation (or variation) of orders under Rule 3.1(7) of the CPR:

"The cases all warn against an attempt at exhaustive definition of the circumstances in which a principled exercise of the discretion may arise. Subject to that, however, the jurisprudence has laid down firm guidance as to the primary circumstances in which the discretion may, as a matter of principle, be appropriately exercised, namely normally only (a) where there has been a material change of circumstances since the order was made, or (b) where the facts on which the original decision was made were (innocently or otherwise) misstated."

Interpretation of ET Rules
The EAT considered that as the ET Rules of Procedure had been applicable over roughly the same period as the CPR has been in force, it was necessary to consider the relevant authorities decided during that period.

As a starting point, in Maurice v Betterway UK Ltd [2001] ICR 14 (a case about successive pre-hearing reviews), the EAT had stated that this was "...not a power to be used in order to have a second or third or further bite at the same cherry, when there has been no material change in facts or in the law, nor is it a procedure to be used to enable a party to go, as it were, chairman shopping, moving from one chairman to another until it can find a chairman who will come up with a decision in its favour."

What emerged following a more general consideration of the case authorities relating to the CPR and the ET Rules was that:

* the draftsmen of both sets of Rules must be taken to have drafted them with the same universal principle in mind, namely finality and certainty of decision and orders and the integrity of judicial decisions. Therefore, usually any challenge to an order would be by an appeal to a Tribunal of superior jurisdiction (and the principle discouraged asking the same Judge or another Judge of equivalent jurisdiction to look again at an order or decision, save in carefully defined circumstances); * before a Judge can interfere with an earlier order made by a Judge of equivalent jurisdiction there must be either a material change of circumstances or a material omission or misstatement or some other substantial reason; * as the current ET Rules used the expression "necessary in the interests of justice", looking at that through the prism of the above principle, those words should be interpreted so that a 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 of fact (and possibly, in very rare cases, of law, although that was more like the occasion for an appeal) or an omission to state relevant fact; or

• in other circumstances, although these will be "rare … [and]... out of the ordinary".

Revocation – discretion or jurisdiction?
In relation to the present appeal, the question arose as to whether the Regional EJ's decision to revoke the original order was an exercise of judicial discretion (as to which there might be more than one reasonable view) or whether it was a matter of jurisdiction? The EAT thought that it was the latter. Whether or not there has been a change of circumstances and whether or not such a change was material, is a matter to be decided from an objective standpoint.

Accordingly, the list of issues to be decided by the ET in the present case could not be regarded as a material change of circumstances. It was true that it provided a more detailed analysis of the case, but the case itself remained the same. The Regional EJ had proceeded on the basis that what had changed by the preparation of the list of issues was the perception of the case and was based on what the original EJ could have envisaged at the initial hearing. But that presupposed that the original EJ had done so on a partial and inadequate awareness of the future complexity of the case. Once a later Judge started asking what an earlier Judge had in mind, the Tribunal had "started to tread where it should not". Even if the matter were not one of "jurisdiction", but of an exercise of discretion, the EAT considered that the Regional EJ had still made an error of law because, for the same reasons as above, the list of issues was not a material change in circumstances.

**Adding a party - ACAS EC
**Rule 34 of the ET Rules 2013 provides as follows:

"The Tribunal may on its own initiative, or on the application of a party or any other person wishing to become a party, add any person as a party, by way of substitution or otherwise, if it appears that there are issues between that person and any of the existing parties falling within the jurisdiction of the Tribunal which it is in the interests of justice to have determined in the proceedings…"

How do these provisions interact with section 18A of the Employment Tribunals Act 1996 ("ETA")? That section includes provision that:-

"(1) Before a person ("the prospective Claimant") presents an application to  institute relevant proceedings relating to any matter, the prospective Claimant  must provide to ACAS prescribed information in the prescribed manner, about  that matter."

Can an ET add a party to the proceedings even where the prospective Respondent has not been subject to ACAS EC? Yes, said the EAT in [Drake International Systems Limited & Ors v Blue Arrow Ltd]() UKEAT/0282/15/DM.

Background
A Claimant, Blue Arrow Limited, brought proceedings against Drake International Ltd (a parent company of various group subsidiaries) after properly completing ACAS EC procedures. Once proceedings had been issued, Drake International Ltd argued that the proper Respondents were four companies which were its subsidiaries. Blue Arrow successfully applied to amend to substitute those subsidiaries for Drake International.

The Respondents appealed, broadly on the ground that the ET had no jurisdiction to hear the case against them in circumstances where the Claimant had not first obtained a relevant ACAS EC certificate in respect of each additional Respondent.

"Matters" not causes of action
The appeal was dismissed: it was not necessary once a claim had been issued to engage in EC before a new party could be added in the same proceedings under Rule 34. Although in [Science Warehouse Ltd v Mills ]()[2015] UKEAT/224/15 (decided in October 2015), the EAT had decided that an existing claim could be amended without the need for further EC, the EAT in the present case thought that the position applied equally to an entirely new claim which post-dated the ET1. That was because the EC Rules did not require any formal setting out of each cause of action. The expressions "any matter" and "that matter" in section 18A were broad concepts. A "matter" may involve an event or events, different times and dates, and different people. All may be sufficiently linked to come within the scope of "that matter".

*Purpose of EC
*Further, the purpose of the EC provisions is to provide an opportunity for parties to take advantage of ACAS conciliation if they wished. There was no obligation to engage in EC, but merely the need to obtain formal recognition that EC had been considered by the Claimant. The present case was typical - the precise identity of an employing subsidiary in a group of companies may not be clear. However, the Claimant had had an opportunity to seek conciliation in respect of "the matter" in regard to which she ultimately brought a claim. The purpose of the EC rules and the relevant procedure was therefore honoured in respect of that "matter".

In addition, the ETA and the EC Regulations speak of a "prospective Claimant" in relation to proceedings which have not yet been instituted. It made no sense to talk of a "prospective" Claimant once ET proceedings had been instituted. Insofar as there were applications to substitute fresh Respondents to an existing claim, then if permission were refused, the applicant would be a prospective Claimant in relation to those Respondents. But where at the time the application is made there are existing proceedings, that person is an actual Claimant (rather than a prospective one), in relation to "the matter" .

Case management decision
What was really in issue in the appeal was a case management decision (i.e. the decision to allow substitution of one party for others). The ET's discretion was to be exercised in a manner satisfying the requirements of "relevance, reason, justice and fairness inherent in all judicial discretions" (Selkent Bus Co Ltd v Moore . In addition, the ET would be bound by the requirements of the overriding objective (introduced since Mummery J decided Selkent).

The requirements of the overriding objective include "(d) avoiding delay so far as compatible with proper consideration of the issues; and (e) saving expense". In this context, the saving of expense was not restricted to the expense of the parties directly concerned, but would also cover ACAS, whose time and trouble would be employed considering conciliation again in respect of the substance of "a matter" which had already been raised. The suggestion that there was a need for the Claimant to proceed by asking for further EC had the ring of "an empty formality" which did not serve justice.

Dismissing the appeal, the EAT commented that if it had not done so, there could be a real risk of satellite litigation in respect of the EC provisions with "the same stultifying effect" as the litigation relating to the statutory dispute resolution procedures under the Employment Act 2002.

Amending an ET claim
When considering an application to amend an ET claim, was an out of time claim determinative in exercising discretion? And did the EC procedure apply before adding a new Respondent? These issues were considered in [Mist v Derby Community Health Services NHS Trust ]()UKEAT/0170/15/MC following an ET's refusal of permission to amend to add a claim against a Second Respondent (the transferee in a TUPE transfer).

Background
The Claimant was employed by the First Respondent until her resignation in July 2014. She lodged an ET claim against the First Respondent, raising various allegations, including unfair dismissal under TUPE. Although her ET1 referred extensively to an alleged TUPE transfer to the Second Respondent, the Second Respondent was not named in the ET1.

Adding the Second Respondent to the proceedings, the EJ held that "Given that this is an early stage of the proceedings… if the Claimant is correct as to the applicability of TUPE… the refusal may otherwise leave her without remedy". Having been added as a party, the Second Respondent's ET Response contended that the ET had no jurisdiction because the claims against them were out of time. The ET agreed.

The Claimant appealed on the grounds that the ET had failed to apply the Selkent principles (see above) by giving undue prominence to the limitation period at the expense of her right to a remedy and by failing properly to assess the balance of hardship between the parties.

It was clear to the EAT that the ET had understood that it was shutting the Claimant out of otherwise valid claims relating to the termination of her employment. On the other hand, the only hardship identified in respect of the Second Respondent was that it would not be able to take a point on the limitation period. On that basis, the ET's refusal to permit the amendment seemed perverse. The flaw in the ET's reasoning was that it permitted the time limit issue - the only matter the Second Respondent could point to as giving rise to any potential hardship - to outweigh all other factors, including the denial of any determination of the merits of the Claimant's claims.

Whilst there may be cases where the time limit issue has greater weight because that delay causes prejudice to the Respondent, that was not (on the ET's findings) the position in the present case.

Therefore, the ET's conclusion on the application to amend could not stand: it erroneously permitted the time limit issue to outweigh the injustice it had found would be suffered by the Claimant who would be denied the ability to pursue otherwise legitimate complaints against the Second Respondent.

*Cross-appeal: alleged failure to comply with ACAS EC requirements
*The Second Respondent cross-appealed, including on the grounds that the ET had no jurisdiction to consider the proposed amendment because (i) the original claim against the First Respondent did not comply with the mandatory requirements of EC procedure (as the EC certificate had not given the correct name for the prospective Respondent) and/or (ii) that EC had not been validly complied with in respect of the Second Respondent.

The EAT disagreed. In respect of the First Respondent, the EC procedure had been properly completed. Whilst the EC Rules require that a prospective Claimant must provide prescribed information to ACAS before presenting an application to the ET, the requirement is not for the precise or full legal title. So, for example, a trading name would be sufficient. The requirement is designed to ensure ACAS is provided with sufficient information to be able to make contact with the prospective Respondent and on the face of the EC certificate, the information provided to ACAS had been sufficient for it to make such contact.

Discrepancy between EC Certificate and ET1
For the purposes of Rule 12(2A) of the ET Rules 2013, did it matter in the present case that the name of the Respondent given in the ET1 differed from that on the EC certificate? No, said the EAT. Any error in identification of the First Respondent was plainly minor  ("Royal Derby Hospital" was stated in the EC Certificate, whereas the ET1 referred to "Derby Hospitals NHS Foundation Trust" albeit with the same address).

If the point had any validity, it should have been taken at an earlier stage. Rule 12(2A) of the ET Rules permits an EJ to decide that a claim should not be rejected where there is a difference in the details given for the Respondent in the ET1 as compared to the EC certificate where the EJ considers the error is minor and it would not be in the interests of justice to reject the claim. Although the point should have been taken much earlier, there was in fact no suggestion that the interests of justice would have dictated that the claim should have been rejected by the ET.

Was EC needed for the Second Respondent?
Another procedural argument by the Second Respondent was that the Claimant had failed to comply with EC requirements in respect of the Second Respondent itself. Although the Claimant had in fact made an EC notification to ACAS, she had not provided the Second Respondent's correct title, referring instead to its address. Did that matter? The EAT thought not. The Claimant was not required to undertake EC in respect of her application to include a claim against the Second Respondent as she was no longer a "prospective Claimant". She had already presented her Claim Form; she was then asking the ET for leave to amend it.

The ET pointed to the fact that under Rule 34 of the ET Rules 2013, the addition or substitution of parties was permitted without reference to any further EC requirements. This approach also gave effect to the overriding objective by allowing ETs to deal with cases in a proportionate manner, avoiding unnecessary formality, seeking flexibility in the proceedings and avoiding delay and expense.

Even if it was wrong about any EC requirement upon a Claimant, the EAT was not persuaded it would have made any difference. For the reasons explained above, an error in the naming of a prospective Respondent did not mean that ACAS automatically had to reject the notification. ACAS would be entitled to accept the notification notwithstanding that some of the relevant information might be missing. Similarly, the ET would not itself be bound to reject the claim against the Second Respondent because the name given on the amended claim form was not the same as that on the EC certificate; it had not rejected it and in any event the Second Respondent had not raised any objection when it entered its ET Response.
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Mark Shulman is a Consultant Solicitor with Keystone Law and an accredited workplace and employment mediator. His blog on new employment legislation can be found here.