When there are disputes between parties to a tribunal claim as to the issues to be considered, the tribunal can make a case management order detailing how they should be handled. Once those issues have been agreed, the Employment Appeal Tribunal (EAT) has made clear in Ijegede v Signature Senior Lifestyle Operations Ltd that tribunals cannot change them unless it would be in the “interests of justice”.
Basic facts
Mr Ijegede, who worked in a care home, alleged that he had been scapegoated and singled out for disciplinary action by his employer regarding procedural errors in the medication regime of a particular patient. White colleagues, on the other hand, had committed the same error and not been disciplined.
He also alleged that he had told members of the senior management team that staff were failing to carry out weekly spot checks in respect of another patient and had not complied with the medication regimes in relation to the risk assessment and care plan of a third patient. Finally, he alleged that he had been the victim of bullying by other staff members.
He brought claims of direct race discrimination, harassment and victimisation.
Tribunal decision
After much detailed discussion at two preliminary hearings, the parties to the case agreed on a specific list of issues that should be heard at the main hearing. However, when it came to the hearing, the tribunal excluded the allegation that Mr Ijegede had been “singled out” for disciplinary action and ignored the actual comparators agreed by the parties in favour of a hypothetical comparator, saying it was just “background information”. It dismissed his claims on that basis.
Mr Ijegede appealed, arguing that the tribunal had exceeded its powers under rule 29 of the Employment Tribunals Rules of Procedure 2013 which states that earlier management orders can only be set aside “in the interests of justice”. This was interpreted in the decision of Serco v Wells to mean that tribunals should only depart from the original order if there had been a “material change of circumstances” since the order was made; where the order was a misstatement of the facts; or where there was some other rare or exceptional circumstance.
Just before the appeal was heard, it transpired that Mr Ijegede’s wife (who represented him at the tribunal hearing) had forwarded a grievance document to the tribunal at the same time as the claim form, asking for it to be served on the employer. This, however, had not happened. He argued that this additional document, which reinforced his claims of being “singled out”, was incorporated into the original claim form.
EAT decision
Allowing the appeal, the EAT held that, by narrowing the list of issues to be heard, the tribunal had fundamentally misunderstood the basis of Mr Ijegede’s claims.
Instead of undertaking an analysis of why the issues had been formulated in the way that they had, the tribunal took the view that it could vary the earlier orders simply because it disagreed with them. This contradicted the decision in Serco, which made clear that any variation is always subject to important qualifications, including a consideration of whether the variations are in the interests of justice.
In addition, had the status of the grievance document been discussed at the tribunal hearing, then the email correspondence between Mr Ijegede’s wife and the tribunal staff would also have become apparent. In those circumstances, it was highly likely that any application to amend the claim would have been granted, particularly given that she was a litigant in person and could not be expected to be familiar with tribunal proceedings.
The EAT remitted the case to a new tribunal for a fresh hearing.