Appeal No. UKEAT/0567/10/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 26 January 2011
	   Judgment handed down on 14 February 2011

Before
THE HONOURABLE MR JUSTICE WILKIE
(SITTING ALONE)

MISS C KERR	APPELLANT

(1) ERNST & YOUNG SERVICES LTD
(2) ERNST & YOUNG LLP UK
(3) ERNST & YOUNG GLOBAL	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR JAMES WYNNE
(of Counsel)
Instructed by:
Messrs Didlaw Solicitors
24 Longmoor Road
Uphook
Hampshire
GU30 7NY	
For the Respondents	MS JENNIFER EADY 
(One of Her Majesty’s Counsel)
Instructed by:
Messrs Olswang Solicitors
90 High Holborn
London
WC1V 6XX	

SUMMARY
PRACTICE AND PROCEDURE
Case management
Striking-out/dismissal

1.	Employment Judge erred in law in assuming she had jurisdiction in effect to strike out part of the claim, on case management grounds at a case management discussion.

2.	The employment Judge erred in law in proceeding to make such an order without first giving the Claimant the opportunity to make representations.

3.	In all the circumstances the decision of the Employment Judge was such that no reasonable judge properly directing herself could have reached. 

THE HONOURABLE MR JUSTICE WILKIE
Introduction
1.	The Appellant appeals against certain orders made pursuant to a Case Management Discussion (CMD) at the London South Employment Tribunal on 1 October 2010.

2.	Amongst the orders made was an order that the hearing of the Claimant’s complaints against the Respondents would commence on 14 June 2011 for 20 days and that liability and remedy be determined at that hearing.  That is not the subject of appeal.  The order which is the subject of appeal is contained in paragraph 5 of the order and reads as follows:

“Due to the passage of time and their unavailability as witnesses I am satisfied that it is no longer possible to have a fair hearing in these proceedings in respect of the specific allegations of unlawful sex discrimination made against Mr Ireland, Ms Rigden and Mr Cunningham in the Claimant’s claim form.   As a means of reducing the areas of dispute and the time taken for the hearing I direct that the Tribunal that hears the case shall consider such allegations of unlawful discrimination made against these individuals, as far as they are relevant to the issues to be determined, as matters of background evidence only.”

3.	The Appellant’s grounds of appeal are: first: that the Employment Judge did not have jurisdiction to make such an order at a CMD; second: that the making of the order was procedurally unlawful in that, in the circumstances which arose at the hearing, the Employment Judge made that order without having heard any submissions from the Appellant and only agreed to receive oral submissions at the hearing by way of an application by the Appellant for the review of that case management decision which the Employment Judge had already made; third: that, in all the circumstances of the case and on the evidence which was before the Employment Judge, her decision to make that order was perverse in that no rational Tribunal could have reached that conclusion on the material placed before it.

The procedural history
4.	The Appellant is employed by the First Respondent though currently is away from work sick.  Her employment commenced on 21 November 2005. The other Respondents are associated with the First Respondent.

5.	On 1 June 2010 she commenced proceedings against the Respondents for sex discrimination, including equal pay, and for disability discrimination.  Her complaints are contained in a document some 13 pages in length and comprising 43 numbered paragraphs.   She sets out the relevant factual background, from her point of view, at paragraphs 2 to 41.   Amongst many complaints are included complaints against Richard Ireland, Peter Cunningham and Sarah Rigden, the first two of whom were partners in the Respondents and the third of whom was employed by the Respondents.  The complaints against Mr Ireland focus on events in October 2006 and September/October 2007.  The complaints against Mr Cunningham are undated.  The complaints against Ms Rigden concern events in July and October 2007.  There are complaints against other named persons some of which go back to 2005.

6.	In her ET1 the Appellant indicated that she had put her complaints in writing to the Respondents on 24 March 2009.

7.	It is apparent from the documentation in the bundle which was before the Employment Judge that, in her letter of complaint, the Appellant specifically named Mr Ireland, Mr Cunningham and Ms Rigden and, in her statement accompanying her grievance, described, at some length, her complaints against each of those individuals.

8.	On 19 August 2009 a letter was sent to the Appellant by the Respondents responding to her grievance.  It gives a brief summary of the Respondents’ response to her grievances in respect of Mr Ireland and Mr Cunningham, which had been investigated.  In respect of her complaint against Sarah Rigden the Respondents stated that, as Ms Rigden had left the firm before the grievance was lodged they were unable to investigate the complaints against her.   There was annexed to that letter a fuller document setting out a detailed determination of the grievance.  It set out, in respect of each person complained against, the allegations and the findings.  In the cases of Mr Ireland and Mr Cunningham that was possible as a result of the investigation.  There is nothing in respect of Ms Rigden.  In addition there was a yet fuller document summarising the investigation and, in respect of each person complained against, a statement of the allegations, a review of the evidence and a conclusion.  That is so in the cases of Mr Cunningham and Mr Ireland.  It is evident from those documents that Mr Cunningham and Mr Ireland were, at least, interviewed about the allegations and gave their accounts which were noted and from which the author of the document was able to distil the essence of their response to the allegations.

9.	The Respondents in their ET3s raised, in respect of each of the claims made by the Appellant, the argument that the claims made in the ET1 were out of time and that it would not be just and equitable to extend time in order for the Tribunal to consider the substance of the complaint.

10.	On 7 September 2010, at its own initiative, the Employment Tribunal gave notice to the parties of a “pre-hearing review” (PHR) to be heard on 1 October 2010.   The notice read as follows:

“Matters to be clarified and if appropriate to be decided at the PHR are: whether having regard to the matters raised by the respondent at paragraph 9 of section 5.2 of the response a Tribunal has jurisdiction to hear the claimant’s claims” (that is a reference to the contention that the claimant was out of time).

11.	Both parties attended the PHR with a view to arguing this issue and, in addition to the documentation already referred to, presented in a bundle before the Tribunal witness statements, respectively, by the Claimant: giving her explanation, in terms of ill health caused by the treatment of which she complained, for any delay there might have been in commencing proceeding; and from Shiree Murdoch, the Respondents’ Human Resources Director: dealing with the chronology of events including the grievance and the delay.   In that witness statement Ms Murdoch stated the following:

“28.   I also note that three individuals who would be key witnesses in this case have left the respondent’s employment – Ms Rigden..Mr Ireland..and Peter Cunningham.
29.   Ms Rigden left the first respondent’s employment at the end of August 2008, Mr Ireland retired from the second respondent’s partnership on 4th April 2010 (following his return from a secondment to China where he had been since 1st April 2007) and Mr Cunningham was dismissed by reason of redundancy on 24th July 2009.
30.   I understand that the first respondent is no longer in contact with any of these individuals.
31.   I understand that the first respondent did at some point contact Mr Cunningham and seek his assistance in connection with other Tribunal proceedings, however he declined to assist.   As for Ms Rigden, I believe that the first respondent no longer has details of any forwarding address at which Ms Rigden may be contacted, although I understand that her personal mobile telephone number has been retained.   Regarding Mr Ireland, the first respondent has an e-mail address at which ostensibly he may be contacted, however, we have tried to make contact with Mr Ireland about these proceedings but he has not replied as at the date of this statement.
32.   I believe that the inability to obtain witness evidence from these individuals will significantly prejudice the first respondent’s case.”

What occurred at the Tribunal hearing
12.	The sequence of events at the Tribunal hearing is best ascertained from the Reasons given by the Employment Judge of her orders and directions by a document dated 8 October 2010.

13.	She states that it came before her at a PHR to determine whether the claims had been presented outside the time limits and, if so, whether the Tribunal should extend time to consider them.  She says that it appeared to her, having considered the detailed claim and response forms, that the question of whether any of the claims were out of time, or whether it was just and equitable to extend time to consider such complaints, should be determined at the full hearing after a full Tribunal had the opportunity to hear the evidence.

14.	In the grounds of appeal it is stated (without apparent dispute) that the Employment Judge, before anyone had made any submissions, stated that she was “strongly of the view” that the PHR was an inappropriate time to consider time points and that they should be argued at a full hearing.  Notwithstanding that strong indication, the Employment Judge says in her Reasons, and again without apparent dispute, that Ms Eady QC, leading counsel for the Respondents, sought to persuade her to hear and decide the time points at the PHR.  This was on the grounds that certain of the allegations made by the Claimant were made against the named individuals who were no longer employed by the Respondent, they could not be traced, and would be unavailable to give evidence live at the hearing.

15.	From the Notice of Appeal, and again it seems without disagreement, the Employment Judge thereupon adjourned to consider the position.  She returned to announce her decisions. They were: first that no PHR would be held on that date, but, second, she had considered the position of the Respondents as described to her by leading counsel and, as a result, she made the case management directions already referred to, including direction number 5.  The reasons that she gave at the time were as follows:

“I have considered the over riding objective and I am satisfied that I have a duty to ensure that a fair hearing is possible for both parties.   The respondent has stated that these witnesses are not available to it and I am satisfied that I can take that as true.  I am satisfied that due to the passage of time and the unavailability of witnesses the Employment Tribunal will not be able to ascertain the truth and so the question in these circumstances is what directions, orders should be given.  The claimant’s allegations go far wider than these claims against these individuals.  If these allegations are dealt with only as part of the evidential background they can be part of the claimant’s evidence but she cannot claim damages specifically relating to their (the three named witnesses) actions, that can be reflected in the list of issues which if for the parties to agree and the allegations that the Tribunal are to focus on will include the pervasive culture which (the claimant) has said led to her whole career loss without being bound by the necessity of specific findings of fact…I do not think that the claimant is disadvantaged by these directions but feel they ensure the respondent has a fair hearing.   These are unusual directions but having regard to the guidance in Hendricks I feel they are necessary.”

(This is taken from the Respondents’ note of what the Employment Judge said.)

16.	It is common ground that before making these directions the Employment Judge had not heard any submissions at all from Mr Wynne on behalf of the Appellant, nor had the form of the direction that she made ever been suggested by the Respondents or their counsel.  The direction was simply the outcome of the Employment Judge reflecting on the submissions made by Ms Eady as to why she should proceed with a PHR to consider the time point.

17.	It is common ground that, at that point, Mr Wynne sought the Employment Judge’s permission to address her in order to persuade her to review the decision which she had taken.   She agreed to allow him to do so.  He did so focussing on what he took to be his main point namely that the evidence of Ms Murdoch was wholly lacking as a basis for concluding that the Respondent would be unable to obtain and use evidence from any of the named individuals, or to call them at the hearing of the claim which, by the direction made that day, had been directed to be heard in June 2011.

18.	It is common ground that the Employment Judge did not think that anything in the witness statement changed her view and that her directions stood (see the Respondents’ note of the hearing).

The reasons for the Employment Judge’s decision
19.	The nub of the decision is contained in paragraphs 4 and 5 of the reasons provided on 12 October.   They read, insofar as is relevant, as follows:

“4.   I have considered the over riding objective.   I am satisfied that I have to ensure the hearing is fair to both parties.   In my view there is no reason to doubt the respondent’s submissions that it has made reasonable efforts to contact the past employees and that due to the passage of time the witnesses are unavailable to give evidence at the hearing.   Therefore I am satisfied that due to the passage of time and the unavailability of the witnesses a Tribunal hearing the case would not be able to test the allegations made against them until (seek) to make findings of fact as to whether the claimant had been discriminated against by the respondent through the actions of Mr Ireland, Ms Rigden or Mr Cunningham.
5.   Due to the passage of time and their unavailability as witnesses I am satisfied that it is no longer possible to have a fair hearing in these proceedings in respect of the specific allegations of unlawful discrimination made against Mr Ireland, Ms Rigden and Mr Cunningham in the claimant’s claim form.   As a means of reducing the areas of dispute and the time taken for the hearing, I direct that the Tribunal that hears the case shall consider such allegations of unlawful discrimination made or pursued against the individuals as matters of background evidence only and not as acts for which the claimant seeks a remedy.”

The grounds of appeal
Lack of jurisdiction/Procedural impropriety
20.	The Order the subject of the appeal was said to arise out of a case management discussion and is entitled “Orders and Case Management Directions”.  There is no separate order in respect of the PHR hearing which had been listed by the Tribunal and there is no formal decision recorded in any order that the time limit points should be heard at the full hearing.  Rather, it appears that the Employment Judge decided simply to make no order at all on the PHR, thereby leaving the default position that all issues, including time limits and extensions of time, should be heard at the full hearing unless, in the meantime, there were some separate application which succeeded.

21.	The Appellant states that it is clear that the Employment Judge believed that she was making case management decisions arising out of a case management discussion, she having first decided to make no order in respect of time limits under the PHR.

22.	The general power to manage proceedings is given to Employment Judges by regulation 10 of the ET Constitution and Rules Procedure Regulations 2004 Schedule 1.   That regulation reads as follows:

“(1) Subject to the following rules the Employment Judge may at any time…make an order in relation to any matter which appears to him to be appropriate.   Such orders may be any of those listed in paragraph (2) or such other orders as he thinks fit.   Subject to the following rules orders may be issued as a result of an Employment Judge considering the papers before him in the absence of the parties or at a hearing…”

Paragraph (2) sets out examples of orders which may be made.  They include “(a) as to the manner in which the proceedings are to be conducted including any time limits to be observed”.

23.	Regulation 14 provides for hearings and provides as follows:

“An Employment Judge or a Tribunal…may hold the following types of hearing – (a) a case management discussion under rule 17 (b),  a pre-hearing review under rule 18…”

24.	Rule 17 provides for the conduct of case management discussions.  It provides as follows:

“(1) Case management discussions are interim hearings and may deal with matters of procedure and management of the proceedings and they shall be held in private.   Case management discussions shall be conducted by an Employment Judge.
(2) Any determination of a person’s civil rights or obligations shall not be dealt with in a case management discussion.   The matters listed in Rule 10(2) are examples of matters which may be dealt with at case management discussions.   Orders and judgments listed in rule 18(7) may not be made at a case management discussion.”

25.	Regulation 18 deals with pre-hearing reviews and provides as follows:

“(1) Pre-hearing reviews are interim hearings and shall be conducted by an Employment Judge…subject to Rule 16 they shall take place in public.
(2) At a pre-hearing review the Employment Judge may carry out a preliminary consideration of the proceedings and he may –
(a)   Determined any interim or preliminary matter relating to the proceedings.
(b)   Issue any order in accordance with Rule 10 or do anything else which may be done at a case management discussion;…
(6) Before a judgment or order listed in paragraph (7) is made notice must be given in accordance with Rule 19.   The judgment or orders listed in paragraph (7) must be made at a pre-hearing review or a hearing if one of the parties has so requested…
(7) Subject to paragraph (6) an Employment Judge or Tribunal may make a judgment or order –…
(f)  Striking out a claim where an Employment Judge or Tribunal considers that it is no longer possible to have a fair hearing in those proceedings…”

26.	Regulation 19 concerns notice requirements.  It provides that, before making an order set out in Rule 18(7), the Secretary of the Tribunal shall send a notice to the party against whom it is proposed the order should be made.  However, the paragraph should not be taken to require the secretary to send such notice to that party if that party has been given an opportunity to give reasons orally to the Employment Judge, or the Tribunal, as to why the order should not be made (see regulation 19(1)).

27.	The Appellant argues that the order made by the Employment Judge, purportedly arising out of a case management discussion, could not be made arising out of such a hearing because it has the effect of determining the Appellant’s civil rights.  Accordingly, she argues, Regulation 17(2) expressly forbade it from being made at a case management discussion.  The Appellant also says that the effect of the order was as an order under rule 18(7)(f) striking out of a part of the claim because the Employment Judge considered that it was no longer possible to have a fair hearing.  That was the expression that she used.  Furthermore, it is argued that support is given for that proposition in that the terms used by the Employment Judge to describe the effect of her order makes it clear that, as a result, the Appellant could no longer claim a remedy in respect of those matters complained of, even though, if they were relevant, she would be able to give evidence about them at the full hearing.  It is argued that, in effect, the order amounts to striking out the complaints that she made about Mr Ireland, Mr Cunningham and Ms Rigden and/or that by eliminating the possibility of those complaints giving rise to a remedy the order determined the Appellant’s civil rights to a remedy in respect of those complaints.

28.	Accordingly, it is said that, as the Employment Judge was acting pursuant to a case management discussion, she did not have jurisdiction to make that order. 

29.	The second ground is that the Employment Judge acted unlawfully in making that decision without first hearing any submissions from Mr Wynne.  It is said that that is specifically prohibited by the combined effect of regulations 18(6), 18(7)(f) and 19(1).  If the order made was an order striking out that part of her claim, comprising complaints against Mr Ireland, Mr Cunningham and Ms Rigden, then the order was, in truth, an order made pursuant to 18(7)(f) and, as such, the other regulations required the party against whom the order was made to be given an opportunity orally to give reasons why the order should not be made before it was made.  No such opportunity was given.  It is said that granting Mr Wynne the opportunity to seek to persuade her to change her mind after the direction had been made, by way of review, was insufficient to put right that procedural defect.

30.	The Appellant relies in support of its contention, that the order could only be made under Regulation 18(7)(f), on the Court of Appeal decision in Care First Partnership Ltd v Roffey [2001] ICR 87.  In that case the Court of Appeal agreed with the Employment Tribunal, and the EAT, that a Tribunal had no jurisdiction by its general procedural powers to strike out or dismiss a claim but could only do so on the grounds expressly given by the rules (see pp 92 E to G and H).

31.	The Respondents say that the Employment Judge did not strike out the claim or any part of it.  What she was doing was exercising her general case management powers for the purposes of reducing areas of dispute and the time taken for the hearing in circumstances where, because of the passage of time and the unavailability of witnesses to be called by the Respondents, it would no longer be possible to have a fair hearing.  The fact that that last phrase resonates with regulation 18(7)(f) does not mean that what the Employment Judge was doing was striking out that part of the claim.

32.	The Respondents say that the Appellant has to rely on her various individual complaints as constituting a continuous act in order for there to be any prospect of her claims being made in time.  Accordingly, to order that certain of those complaints can no longer attract a remedy but may, if relevant, amount to background evidence does not amount to striking out a claim but merely amounts to focussing the proceedings in such a way as to assist case management.   Reliance is placed upon the dictum of Lord Justice Mummery in Commissioner of Police of Metropolis v Hendricks [2002] EWCA Civ 1686 at paragraphs 53 and 54. It is said that, in the context of stating the parties’ obligations to attempt to agree a list of issues as a means of reducing the area of dispute so as to keep proceedings within reasonable bounds by concentrating on the most serious and most recent allegations, a role, absent agreement, is expressly recognised for the chairman of the Tribunal to decide how the matter should proceed.

33.	In my judgment, and looking at the reality of the matter, the decision of the Employment Judge was a decision to preclude the Appellant from claiming a remedy in respect of complaints made by her against three named persons.  By so doing she was, in effect, striking out the claim, insofar as it reflected complaints about those three individuals and/or she was making a determination of the Appellant’s civil rights, because her order precluded the Claimant from claiming any remedy in respect of those matters.  I do not accept the contention that the fact that complaints may be described as a continuous act for the purpose of time limits means that they cannot be regarded as claims, or parts of a claim, for the purpose of being struck out or being determined as a matter of the Claimant’s civil rights

34.	Accordingly, in my judgment the directions which the Employment Judge made were not directions which were open for her to make at a case management discussion.

35.	In my judgment the substance of what she was doing was exercising her judgment to preclude the Appellant from pursuing a claim leading to a remedy in respect of those three persons on grounds which are identical to the grounds upon which a claim (or as Ms Eady agreed a part of a claim) may be struck out under regulation 18(7)(f).  On that basis and having regard to Roffey the Employment Judge was obliged to act under that power rather than any more general power.  The role described in Hendricks has to be exercised within the constraints of the regulations.

36.	On the basis that the Employment Judge was, in truth, acting under regulation 18(7)(f) she was procedurally in error by failing to give notice to the Appellant of the fact that she was considering such an order.  Of course regulation 19(1) no longer requires there to be formal written notice but, in my judgment, the obligation to give the opportunity to make oral representations requires that the order should not be made under regulation 19(1) until, in advance of the decision being made, an opportunity to make oral submissions is given.  An opportunity orally to seek to retrieve the position once the decision has been made by way of review is, in my judgment, insufficient procedurally to rectify that which has gone wrong.

37.	However, in case I am wrong, and the order made by the Employment Judge was one which she could make under 18(2)(a) namely: an interim or preliminary matter relating to the proceedings, in my judgment the Employment Judge was in error in failing to give the Appellant the opportunity to make representations why such an order should not be made, before making it.  That is a breach of the rules of natural justice, and is not sufficiently remedied, in my judgment, by an ex post facto offer to the Appellant to try to change her mind once the order had been made.

The third ground of appeal
38.	The third ground of appeal is stated in the following terms in the Notice of Appeal.

“The Tribunal’s reasoning was that the respondent would be “incapable” of providing live evidence on those claims, however no rational Tribunal could have reached that conclusion on the material placed before it.   The efforts to obtain evidence from the three individuals is unreasonably poor – in relation to two of the individuals no efforts to contact them had been made regarding this matter at all, and in relation to the third individual he had merely not yet replied to an e-mail (no information as to when the e-mail was sent and what was said was put forward) two of the individuals were recently partners of the second respondent.
The conclusion that the second respondent was incapable of providing live evidence from these three individuals on the information before the Tribunal was perverse.
On the information before the Tribunal no reasonable Tribunal could have made directions that in effect struck out the claims.”

39.	The decision made by the Tribunal was recorded in the case management directions in the following terms:

“Due to the passage of time and their unavailability of witnesses I am satisfied that it is no longer possible to have a fair hearing in these proceedings in respect of the specific allegations of unlawful sex discrimination made against Mr Ireland, Ms Rigden and Mr Cunningham in the claimant’s claim form.”

40.	The reasons supporting this decision state as follows:

“ 4… in my view there is no reason to doubt the respondent’s submissions that it has made reasonable efforts to contact these past employees and that due to the passage of time the witnesses are unavailable to give evidence at the hearing…”

41.	The decision made initially by the Employment Judge was, it appears, based wholly on her reading of the ET1 and ET3.  She had not, apparently, read any of the other material including the witness statement of Ms Murdoch.

42.	The ET3’s of the Respondents were in identical terms, insofar as is relevant.  They each take the time point in respect of each of the claims made and assert that it would not be just and equitable in all the circumstances for the Tribunal to consider the complaints brought out of time.  There is nothing in any of those passages hinting at any difficulties with witnesses.  In respect of the specific allegations made against the three individuals the ET3s deal specifically with each of the allegations: denying them or, where the conduct is not in dispute, contextualising them. Again there is no reference in the ET3s to any potential difficulty in responding substantively to the complaints because of the unavailability of the person to provide evidence.

43.	It appears, therefore, that the Employment Judge, in taking her decision initially, was responding to what leading counsel submitted to her were the difficulties placed in the Respondents’ way by the fact that none of those three were any longer connected with the Respondents.

44.	The evidence said to be in support of that was the witness statement of Ms Murdoch.  It appears that the Employment Judge had not referred to that document before she was referred to it by Mr Wynne when he applied for a review.  The passage in that witness statement cited above is the extent of the evidence on the basis of which it was asserted that an inability to obtain witness evidence from those individuals would significantly prejudice the First Respondent’s case, a case which, the Employment Judge had decided, would be heard some 8 to 9 months after the date of this decision.

45.	As the Appellant points out in her grounds of appeal, the evidence was that the Respondents had a means of contacting Ms Rigden, namely her personal mobile phone number, but there was no suggestion that they had tried to do so; that the Respondents were able to contact Mr Cunningham but had not sought to do so in respect of these proceedings because of an apparent reluctance by him to co-operate in relation to other unidentified proceedings; and that the Respondents were able to contact Mr Ireland through an e-mail, and had done so, but as yet he had not responded to it.

46.	Furthermore, it was plain from the ET1 and the ET3 that the complaints made against these three individuals were by no means the oldest complaints made.  There were a number of complaints made against others relating to events in 2005 so that it was not the case that these complaints were the earliest being made.

47.	Furthermore, as is stated above, the material before the Employment Judge included the documentation evidencing the outcome of the grievance procedure.  In respect of Mr Ireland and Mr Cunningham it is clear that they had co-operated with the investigation of the grievance fully, to the extent that they had provided evidence, it would seem as a result of an interview conducted by an independent lawyer appointed for the purpose, which enabled the Respondents to respond fully to each of the allegations against them.  The position as far as Ms Rigden was concerned was that, because she had by then left their employment, they had not been in touch with her and so could not form any view on the substance of the complaints made against her.

48.	In my judgment, for the Employment Judge to conclude that the Respondents would be unable to obtain live evidence from these three individuals some 8 months later was, in the light of all of the above circumstances, so illogical that it could properly be described as perverse notwithstanding the high hurdle which establishing such a proposition demands.  In my judgment, no Tribunal, looking rationally at the evidence which had been presented to it, and at that early stage, could have concluded that the Respondent would be incapable of obtaining live evidence from these three witnesses.  They were able to be in contact with two of them, but had not yet tried to contact them.  They were able to get in contact with the third.  True it is that he had not yet responded, but the evidence was that he had, in the past, fully co-operated in response to what, on any view, are very serious allegations made against a man with a significant professional profile and in relation to which he had already evidenced a wish to protect his professional reputation by seeking to refute allegations in the course of the investigation into the grievance.

Conclusion
49.	It follows, therefore, that (i) the Employment Judge did not have jurisdiction to make the order in question following a case management discussion; (ii) She failed to adopt a proper procedure before making her decision to make that order; and (iii) the order which she made, on the evidence and the materials before her, was such that no reasonable Tribunal could have made.

50.	It follows that this appeal succeeds on each of the grounds sought to be argued by Mr Wynne.

51.	I have considered carefully what the order of the Tribunal should be.  It has been argued by Ms Eady that the matter should go back before a differently constituted Tribunal for two issues to be decided.  First, whether to make an order removing the complaints against those individuals as complaints forming part of the claim; and second, if those complaints should continue to be part of the claim, to decide at a pre-hearing review whether those complaints are out of time and/or, if out of time, whether it would be just and equitable to extend time for the Tribunal to consider them.  Ms Eady says that the effect of the order of the Employment Judge is that she has not made any decision that it would be inappropriate to consider the time point in respect of the complaints made against those three at a PHR.

52.	Mr Wynne argues that the only logical outcome is that I strike down paragraph 5 of the order and that all of the claims go forward to a full hearing, in the course of which the Tribunal will consider, and rule upon, whether any or all of the complaints are time barred and, if so, whether time should be extended on the grounds that it would be just and equitable to do so.

53.	In my judgment Mr Wynne is correct in his submission.  The position is somewhat different from what it was on 1 October.  There is now evidence that Ms Rigden can be readily contacted by the Respondents if they so wish.  There is an attendance note by the solicitor acting for the Appellant dated 7 October 2010 of a telephone conversation with Sarah Rigden in which Sarah Rigden identifies her current position, her current employer, and her current telephone number and that, according to her, the Respondents have her home address and phone number and that the Respondents had not been in touch with her.  In respect of Mr Ireland there is a file note dated 5 January 2011 of a telephone call between Mr Ireland and Ms Murdoch.   That makes it clear that the Respondents are in touch with Mr Ireland.  He expresses reluctance to appear as a witness, maintains his original statement, but asks about whether the Tribunal has the power to summons him as a witness.

54.	In my judgment, it would be pointless to have a different Employment Judge consider the question of “strike out” on the basis of the material which was before the Employment Judge on 1 October 2010.  She was acting on her own initiative, there was no application by the Respondents that those parts of the claim should be excluded from consideration by the Tribunal, as parts of the claim rather than as evidence.  In my judgment, if now or in the future, the Respondents consider that it would be appropriate to make an application to strike out those parts of the claim comprising complaints made against those individuals on the grounds established by regulation 18(7)(f), then they may do so, but I will not order the matter to be remitted as an outcome of this appeal.

55.	Furthermore, in my judgment it is plain from the way in which the Employment Judge dealt with the matter that she had decided, contrary to the Respondents’ submissions, that it would not be appropriate to consider, at a pre-hearing review, the question whether any of the complaints, including those against the three, were made out of time and/or whether it would be just and equitable to extend time so that they may be considered by the Tribunal.  The obvious logic of her decision, that those matters should be ventilated at the full hearing, applied equally to the complaints made against the three as it did to the complaints made against others.

56.	Accordingly, the only order that I make is that the appeal is allowed and that paragraph 5 of the Orders and Case Management direction, dated 8 October 2010 sent to the parties on 12 October 2010, be struck out.