An appeal has been scheduled following the instruction at a case management meeting, to claimant, Mr McKinson that he should only put forward six instances of discrimination at the final hearing of his case.
The order was made at a hearing on 25 March 2011 by the Employment Judge Weiniger at London Central.
The order in effect required the Claimant to select no more than six incidents of discrimination and three incidents of victimisation. It was explained that only these allegations, alongside those relating to dismissal, should be entertained at the final hearing.
Mr McKinson was employed as a lecturer at Hackney Community College and last year he made his employer aware of several grievances in relation to various issues arising out of his employment. He was made redundant on 31 October 2010. He made a claim in January 2011 which detailed a range of issues which he said amounted to race discrimination and also “victimisation of the claimant following the claimant raising a grievance on race discrimination”. These instances ran for 50 paragraphs.
It is unusual that a case management order would lead to a question of law but this proves to be one such instance. Mr McKinson's claim form alleged a greater number of incidents of discrimination and victimisation than what was being asked of him and there was no power to require him to select only parts of his case in this manner.
At the case management discussion, Judge Weiniger explained that 'the Claimant shall, by 6 May 2011, file and serve a schedule of no more than six incidents of direct discrimination; and no more than three incidents of victimisation; and unless permission for amendment is sought and obtained, no other allegations than these and the allegations relating to dismissal will be entertained at the Final hearing'. Clearly, someone who wished to put forward a greater number of instances would feel that by not being allowed to do so his case has in part been struck out. This is the main reason for his appeal. Mr McKinson is asking, as a question of law, and of his rights as an individual, why he cannot give a full account of the events leading to his dismissal as he views it.
For the school and others named as defendants this was of course good news, as it's effectively limited their liability. In their view then the judge had merely exercised his discretion to limit the case and clarify on which points to move forward with.
His Honour Judge Richardson at the EAT attested that 'case management of discrimination claims is a notoriously difficult exercise, particularly where the allegations are numerous and extend over a significant period'. It is well accepted that for the benefit of both sides that the allegations being made must be clear.
Mr McKinson had written a long narrative explaining what he believed to have been various instances of discrimination and victimisation. When there are so many instances it can be difficult for the court and indeed the parties concerned to know what to argue for and what exactly to defend. In this way Judge Richardson did not see anything wrong in Mr McKinson being asked to whittle down his words and attach to his instances the law under which he wished to pursue his claims. In doing this the case can be better managed, which is of course of pervasive importance in any litigation. He even went on to explain that an employment judge may encourage the parties to concentrate on the issues which really matter as suggested in Hendricks. This puts forward that an employment judge may select issues to be tried first, if this can be done fairly to both parties.
Whilst it may have been right to ask that the claimant express his case in a manner which would be more amenable to the litigation proceedings as a whole, it was not right to ask him to compartmentalise the instances for which he was in the first place making a claim.
The appeal was allowed as it was agreed that the Employment Judge was wrong to limit the instances in that way. An act of discrimination by its nature may not be clear cut or follow on neatly from the one before it and there is no power to be able to ask that a claimant 'self-select which of a number of complaints, all encompassed within a claim form, he will pursue at the final hearing'.
The appeal is scheduled for 8th October 2011.