Haziz Rahim v The Big Word & Anor
[2023] EAT 171
N Mendy v Motorola Solutions UK Limited & Ors
28 March 2023
[2023] EAT 71
Employment Appeal Tribunal
Mr. Mendy sued his old company. A judge threw out some of his claims without giving him a fair chance. A higher court said the judge was wrong and should let Mr. Mendy proceed with those claims, but refused to hear some new claims Mr. Mendy tried to add late in the game.
Key Facts
- •Mr. Mendy (claimant) brought claims of breach of contract, unlawful deduction from wages, indirect race discrimination, and post-termination victimisation against Motorola Solutions UK Ltd and others (respondents).
- •Employment Judge (EJ) Grewal struck out some breach of contract claims and refused amendment applications for indirect discrimination and post-termination victimisation.
- •EJ Grewal refused a reconsideration application, stating her decisions were case management orders, not judgments.
- •The respondents did not resist the appeal.
- •The appeal concerned EJ Grewal's decisions of August 13, 2021 and September 14, 2021.
Legal Principles
Claims should not be struck out at a private hearing without procedural safeguards.
Employment Tribunal Rules 2013, rule 56 and rule 37(2)
Leave to amend is not required if a claim is already pleaded.
Mendy v Motorola Solutions UK Ltd & Ors [2022] EAT 47
Amendments should be considered based on a balancing exercise of relevant factors, including interests of justice and hardship to parties.
Selkent Bus Company Ltd v Moore [1996] ICR 836 EAT
A strike-out decision amounts to a 'judgment' allowing reconsideration under rule 70, or under rule 29 if a case management order.
Employment Tribunal Rules 2013, rule 1(3)(b) and rule 70
Applications to amend a Notice of Appeal should be made as soon as practicable.
Khudados v Leggate [2005] ICR 1013
Outcomes
Appeal allowed: EJ Grewal erred in striking out breach of contract and deduction from wages claims at a private hearing without procedural safeguards.
The hearing was private, breaching rule 56, and Mr. Mendy wasn't given sufficient opportunity to make representations, breaching rule 37(2).
Appeal allowed: EJ Grewal erred in refusing the application to amend to include indirect race discrimination.
Mr. Mendy had already pleaded indirect discrimination; the earlier order requiring amendment was set aside in a previous appeal.
Appeal allowed: EJ Grewal erred in refusing the amendment to include a post-termination victimisation claim (mortgage insurance refusal).
EJ Grewal failed to properly apply principles on amendment, not considering relevant factors.
Appeal allowed: EJ Grewal erred in refusing reconsideration; the strike-out decision was a 'judgment', not a case management order.
The strike-out decision fell under the definition of 'judgment' in rule 1(3)(b), allowing reconsideration under rule 70.
Application to amend the Notice of Appeal refused: new grounds regarding post-termination victimisation (data protection) and further breach of contract claims were not raised timely.
The delay in raising these matters was unexplained and prejudiced the process. Furthermore, one claim was against a party no longer involved in the proceedings.