When 10 discrimination allegations are not enough

Discrimination cases are often complex, entailing a lengthy history of events and requiring employment tribunals to grapple with a wide range of allegations. They are also one of a diminishing type of claim which are still heard by a three-person panel.

It is common for employment judges to issue case management directions to focus the issues at stake. However, in Tarn v Hughes the Employment Appeal Tribunal ruled that an ET’s case management direction which instructed the claimant to limit her claim to the 10 most recent and serious allegations was perverse.

Tarn worked as a GP in a Hampshire medical practice. In early 2016 she advised her colleagues that she was pregnant. At that point she alleged that her colleagues started to discriminate against her, and that their behaviour included harassment and victimisation.

The employment judge noted that her ET1 included 21 acts of direct discrimination, 19 of harassment and six of victimisation. He claimed this would require the ET to decide 180 issues. He made clear that the other acts complained of could, if necessary, be considered at a later hearing, but should be considered at the first hearing simply as contextual issues.

While a tribunal complaint alleging 46 acts of discrimination is on the large side, it did not, in the EAT’s judgment, permit the judge to require Tarn to select 10 allegations for the ET to consider.

The finding of perversity stemmed from the EAT’s view that the EJ had failed to get to grips with the substance of the complaints, thus failing to consider whether they could be properly considered on a representative basis. The EAT also noted that in the event of an adverse judgment in the first instance, the claimant would simply seek to have the excluded complaints considered at a subsequent hearing, thus eliminating any saving of time and cost.

Tarn v Hughes UKEAT/0064/18/DM