Amendment; claim forms; adding or substituting respondents; the Cocking test. The National Industrial Relations Court (Sir John Donaldson) laid down the procedure for deciding whether to allow an amendment that changes the basis of a claim or adds or substitutes a respondent: the tribunal must have regard to all the circumstances, in particular any injustice or hardship that would result from allowing or refusing the amendment [IDS 9.22]. The test was restated in Selkent Bus Co Ltd v Moore and applied by the Court of Appeal in British Newspaper Printing Corporation (North) Ltd v Kelly, which held that Parliament laid down no time limit for amending a claim already presented [IDS 9.65]. An application to add or substitute a respondent relates back to the date of the original claim [IDS 9.63].
Ch 290 - Evidence; 'Without Prejudice'; the rule applies to exclude all negotiations genuinely aimed at settlement.
Tribunals must give reasons that clearly explain to the parties why they won or lost.
Discrimination; disclosure; creation of evidence. The EAT held that the tribunal's power of disclosure is confined to documents already in existence. An employment judge has no power to require a party to create evidence, for example by compiling statistical information about the workforce, that does not exist in documentary form [IDS 10.52].
Discrimination; procedure; the tribunal can only find discrimination on the specific grounds pleaded by the claimant.
Practice; amendments; established the test for allowing amendments: nature of amendment, time limits, timing/manner.
1 All ER 373 - Practice; reasons; a judge must give reasons sufficient to show the parties how the decision was reached.
Apparent bias; recusal. The Court of Appeal gave general guidance on disqualification for bias: automatic disqualification requires a direct (usually pecuniary) interest; otherwise the question is whether the circumstances, viewed as a whole, give rise to a real possibility of bias (as the test was later settled in Porter v Magill). Everything depends on the material circumstances; tenuous or speculative connections do not disqualify.
Discrimination claims survive the death of the claimant; the estate or personal representative may be substituted as party and continue the proceedings. The Court of Appeal held that there is no rule that a discrimination claim abates on death.
2 AC 357 - Bias; the test is whether a 'fair-minded and informed observer' would conclude there was a real possibility of bias.
Regulation; procedural irregularities in professional disciplinary bodies.
The 'narrow client' rule for legal professional privilege in corporate contexts. Only those employees specifically authorised to seek and receive legal advice on behalf of the organisation constitute 'the client' for privilege purposes. Communications between solicitors and other employees, even where those employees hold relevant information, do not attract legal advice privilege. Significant in ET proceedings when respondents seek to withhold internal documents on privilege grounds.
Evidence; 'without prejudice'; existence of a dispute; grievance. The EAT (Cox J) held that an employee's formal grievance did not bring a later meeting within the without prejudice rule. Called to a meeting on her return from maternity leave, opened as 'without prejudice' and said to be independent of the grievance, the claimant was told her job was no longer viable and offered a settlement dressed as redundancy. The meeting was not a genuine attempt to settle the grievance, and no dispute about termination existed, so she could rely on it in her sex discrimination claim [IDS 15.88]. Barnetson v Framlington Group Ltd, which finds a dispute once the parties contemplate or could reasonably contemplate litigation, is reconciled on the footing that the rule protects only communications aimed at settling the particular dispute that has been raised [IDS 15.90]. The exception for perjury, blackmail or other unambiguous impropriety derives from Unilever plc v Procter & Gamble Co, not from this case.
Appeal; new points on appeal. HHJ McMullen QC collected the circumstances in which the EAT will entertain a point not taken below, the first and most important being a point of pure law requiring no further factual enquiry. On the facts the EAT allowed a jurisdictional point conceded before the tribunal to be reopened, these being four test cases standing for some 120 similar concessions. Applied in Russell Cherrington v University of Derby, where leave was refused because the Art. 10 point required factual investigation and evaluation the tribunal had never undertaken.
EAT procedure; Rule 3(10); the test at a Rule 3(10) hearing is whether the appeal has a reasonable prospect of success, i.e. whether there are reasonable grounds for the bringing of the appeal.
Tribunal procedure; specific disclosure; relevance and necessity. Specific disclosure in the employment tribunal requires more than relevance: disclosure must be necessary for fairly disposing of the proceedings. A focused request directed at a pleaded issue and supported by some credible evidence is not a fishing expedition, and neither confidentiality nor volume is of itself an answer to a properly targeted application.
Discrimination; victimisation; a bad reference given by an ex-employer is actionable.
Tribunal procedure; Convention rights raised for the first time on appeal. Slade J allowed the parks police constables to argue that s.200 ERA 1996 had to be read compatibly with the Convention although the point had not been taken below. Treated in Russell Cherrington v University of Derby as confined to points of pure law: a Convention argument attracts no special indulgence, and the EU law principle that a national court must consider Community law points not raised by the parties does not extend to the Convention.
Presentation of claims; time limits. A first claim presented in time had been rejected for non-payment of the tribunal fee then in force. The EAT held that the rejection did not preclude the tribunal from considering whether a second claim covering the same ground should be allowed to proceed. Langstaff P rejected the employment judge's distinction between a claim being presented and being accepted or validly presented: once a claim is presented it is presented, and what follows is not a process of acceptance but only a process of rejection or determination. His statement of principle at paragraph 32 was endorsed by Bean LJ in Clark and ors v Sainsbury's Supermarkets Ltd [2023] EWCA Civ 386.
Rejection of claims; vires. The claim form for unfair dismissal and arrears of pay had particulars attached which related to an entirely different case. The EAT held rule 12(1)(b) of the 2013 Rules ultra vires. The Court of Appeal reversed on both counts: rejection of a claim under rule 12 is not a determination of proceedings, so nothing in s.7(3A) to (3C) Employment Tribunals Act 1996 renders rule 12(1) to (2) ultra vires, and the Rules validly empower a tribunal to reject a claim without a hearing. On the merits the claim form was one which could sensibly be responded to, the employer knowing perfectly well that it had dismissed and immediately re-employed the claimant.
Procedure; debarment; a respondent whose response is struck out can still participate in the remedy hearing.
Procedure; default judgments (Rule 22); an employment judge acting under Rule 22 (formerly Rule 21) must actively consider whether a determination of the claim can properly be made on the available material. It is an error of law to enter judgment simply because a claim is undefended without further consideration.
Practice; amendments; the key test is the 'balance of injustice/hardship' between the parties.
Tribunal procedure; specific disclosure; approach on application. Disclosure in the employment tribunal is guided by CPR 31 principles: a document is relevant if it is likely to support or adversely affect the case of one or other party, and the touchstone for an order is necessity for the fair disposal of the proceedings. Applications for specific disclosure should normally be supported by evidence; the burden is on the applicant to put material before the tribunal establishing the case for an order; and even a relevant document will be ordered disclosed only so far as consistent with the overriding objective.
Tribunal procedure; disclosure; case management powers. Orders for disclosure against a party to the proceedings are made under the tribunal's general case management power (now rule 30 of the ET Procedure Rules 2024), which is not territorially limited: a party outside Great Britain can be ordered to give disclosure. The rule empowering the tribunal to order 'any person in Great Britain' to disclose documents (now rule 33) governs disclosure against non-parties only.
Practice and procedure; costs; panel composition. Cited in the Joint Presidential Guidance on Panel Composition (October 2024) at footnote 17 as authority on the consequences of panel composition decisions and the circumstances in which such decisions may be reviewed on appeal.
Procedure; anonymity; Tribunal was wrong to refuse Rule 50 order without allowing claimant time to obtain medical evidence.
Practice; AI and citation of authorities. The Divisional Court held that freely available generative AI tools are fundamentally unreliable for legal research as they can produce plausible but entirely fabricated citations ('hallucinations'). Lawyers bear a professional duty to verify all AI-generated output through authoritative sources (BAILII, National Archives, official law reports) before use. Those in leadership positions must implement practical measures ensuring compliance with AI-related professional obligations.
Practice; AI and citation of authorities. Applying the Divisional Court guidance in Ayinde, HHJ Charman found that a solicitor's firm had submitted two fictitious AI-generated case citations. The firm's administrative staff had used a legal software's built-in AI research feature without verification. The judge held the conduct was improper, unreasonable and negligent, ordered wasted costs against the firm, and struck out the claim with indemnity costs.
Practice; EAT appeals; time limits. The Court of Appeal reaffirmed the strict approach to the 42-day time limit for EAT appeals. Where judgment and written reasons are in the same document, failure to lodge the judgment with the notice of appeal is not a 'minor error' under rule 37(5). Extension requires substantial compliance with rule 3(1) within the time limit, lodging nothing and providing explanations later is insufficient.
Covert recordings; admissibility of evidence. The EAT held that a covert recording of a meeting is not automatically inadmissible in the employment tribunal. The tribunal has a broad discretion to admit relevant evidence, and the fact that a recording was made without the other party's knowledge goes to weight rather than admissibility. The public interest in accurate fact-finding may outweigh any objection based on the manner in which the evidence was obtained.