When may an Employment Tribunal vary a case management order?
Rarely, holds the EAT in Serco Ltd v Wells.
Thanks to Daniel Barnett’s Employment Law Update for this article
An Employment Judge had made an order listing a preliminary hearing (PH) to consider the claimant's length of service. As the proceedings continued, an agreed list of 96 issues was drawn up for use at the full hearing. A different Judge then considered whether holding the PH was "realistic" given the fact that a 10-day full hearing had already been listed, and revoked the order.
The employer appealed to the EAT. The focus of the appeal was on the meaning of rule 29 of the Employment Tribunal Rules 2013, which provides that a tribunal may "vary, suspend or set aside an earlier case management order where that is necessary in the interests of justice".
In another accessible judgment providing a comprehensive review of the authorities (in this case, those arising from the current and past employment tribunal rules as well as from the Civil Procedure Rules 1998), HHJ Hand QC took a restrictive view of the Tribunal's powers. Put simply, a case management order will not be susceptible to variation or revocation unless "there has been a material change of circumstances since the order was made", "where the order has been based on either a misstatement", or in "rare" circumstances which are "out of the ordinary".
