Tesco Stores Ltd v Rogberg UKEAT/0069/20/AT

Appeal by respondent against a decision by the ET to hear similar claims separately and not to have a single hearing for liability and remedy.

Two claims for unfair dismissal were stayed in 2017 while the claimants were under investigation by the SFO and subsequent criminal investigations The two claimants had been dismissed in connection with the same issue. In 2019 the stay was lifted and the employers' lawyers submitted that both sets of proceedings should be managed together but, at a Case Management Hearing in 2020, the judge rejected that idea.

HHJ Auerbach allowed the appeal on the first issue of hearing the claims separately, largely because the judge in the ET had failed to take sufficient account of the risk that separate hearings would result in inconsistent decisions, perhaps even some form of issue estoppel. He refused the appeal on the second issue. The decision was within the judge’s ambit of discretion as there may be a need to consider different evidence for Polkey purposes, and that need could also raise some complex issues of privilege.


Published: 09/08/2021 12:46

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