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CMOs Revisited: Case Management Orders in the Employment Tribunals

CMOs Revisited: Case Management Orders in the Employment Tribunals

Adam Ohringer considers the recent judgment of the EAT in Serco Ltd v Wells.

 

Employment Tribunals routinely make Case Management Orders (“CMOs”) for the fair and efficient determination of claims.  CMOs may be made on the papers or at a preliminary hearing.  In complex cases, there may be more than one preliminary hearing as the case progresses.

In Serco Ltd v Wells (UKEAT/0330/15), the Employment Appeal Tribunal (HHJ Hand QC) considered the circumstances in which a CMO may be varied or set-aside.

 What was it about?

Put shortly, the Claimant’s case involved a large number of allegations contained in a Claim which occupied more than 160 pages.  At the first case management hearing, an Employment Judge (“EJ”) directed that there should be a preliminary hearing to determine the claimant’s Effective Date of Termination (“EDT”) which would have decided whether he had sufficient continuity of employment to claim ‘ordinary’ unfair dismissal under s.98 of the Employment Rights Act 1996.

That preliminary hearing was vacated to allow for Judicial Mediation which, in the event, was unsuccessful.

Following that, another EJ directed that the case be listed for a full hearing over 10 days.  Having considered the parties’ representations, he decided that for a number of reasons it would be not be appropriate to determine the Effective Date of Termination as a preliminary issue and he therefore varied the original CMOs.  The EJ referred, in particular, to the extensive list of issues prepared since the previous CMOs had been made.  In his mind this showed the inter-relation between the different claims and persuaded him that determining the EDT would not significantly affect the length or conduct of the final hearing.

The employer appealed against this decision and insisted on having the EDT decided as a preliminary issue.

 When can CMOs be varied or revoked?

Rule 29 of the Employment Tribunal Rules 2014 states that:

A case management order may vary, suspend or set aside an earlier case management order where that is necessary in the interests of justice...

 So what did the EAT decide?

The EAT will normally only interfere with CMOs in very limited circumstances.  However, it concluded that the EJ varying the CMOs in this case had exceeded his powers.

The EAT made the following statements of general principle:

  1. It is vital to preserve the integrity and finality of judicial decisions and orders;
  2. An EJ may only interfere with an earlier order made by a judge of equivalent jurisdiction if: (a) there has been a material change of circumstances since the order was made; (b) the order was based on either a misstatement or omission; or, (c) there is some other rare and out of the ordinary reason to do so.

The agreement of a list of issues was not a material change of circumstances.  The second EJ was, therefore, wrong to interfere with the original CMOs.

 Analysis

This Judgment makes clear that CMOs will only be varied in very limited circumstances but that principle also has its limitations. 

  1. It would be surprising if a CMO could not be varied at the request of all the parties.  That would be difficult to square with the ‘overriding objective’ of the Tribunal Rules.
  2. It would also be unfortunate if this principle prevented Tribunals from adjusting certain CMOs where necessary.  For example, where there has been late disclosure and a party wishes to delay the exchange of witness statements as a result.  (Indeed the Employment Tribunals (E&W) Presidential Guidance – General Case Management (2014) encourages litigants to apply to the Tribunal for a variation of an Order if they are having difficulty complying with it.)
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