The claimant had made a claim of indirect race discrimination. At a closed, private preliminary hearing, the ET had made a case management order that had the effect of removing any complaint of indirect discrimination from the face of the claim before it. The effect of that ruling was to determine that the claimant’s claim of indirect discrimination could not proceed and, without a successful application to amend, brought any such claim in the proceedings to an end. The Employment Judge subsequently stated that the pleaded claim of indirect discrimination had been overlooked.

The President of the EAT, Mrs Justice Eady, allowed the appeal saying at [41]

”in attempting to clarify the claims before it, the ET unhappily fell into error, inadvertently striking out part of the claimant’s pleaded case. The error might have been rectified by the ET’s exercising its power of reconsideration under rule 70 but it was not a decision that could simply be revoked under rule 29”

This amounted to a final determination of the claimant’s claim of indirect discrimination and, as a determination on the pleadings without any consideration of the evidence, it was tantamount to a striking out of the claim and thus amounted to a judgment. As a result, the relevant part of the ET’s order would be set aside. She also notes that she was not remitting anything to the ET so it is a matter for them, including as to whether the same judge should hear the proceedings.