Pride and Prejudice in the Employment Tribunal

Pride and Prejudice in the Employment Tribunal

The concept of "prejudice" is a fundamental consideration within the Employment Tribunal's procedures, acting as a cornerstone for ensuring fairness and justice in dispute resolution. At its heart, prejudice refers to the disadvantage or harm that a party might suffer as a result of a particular decision made by the Tribunal, or a failure to adhere to established rules and principles. The Tribunal is mandated to deal with cases "fairly and justly", and preventing or mitigating prejudice to any party is central to achieving this overriding objective.

What Does "Prejudice" Mean in an Employment Tribunal?

In the context of Employment Tribunals, "prejudice" signifies a detrimental impact on a party's ability to participate effectively in proceedings, present their case fully, or receive a fair hearing and outcome. This can manifest in various ways, from being denied the opportunity to submit a defence to facing public disclosure of sensitive personal information. When the Tribunal assesses prejudice, it often involves a "balance of prejudice" test, weighing the potential harm to one party against that of another if a particular decision is made.

The Overriding Objective and Prejudice

The Employment Tribunal Procedure Rules 2024 ("ET Rules 2024") set out an overriding objective to "enable the Tribunal to deal with cases fairly and justly". This objective explicitly includes "ensuring that the parties are on an equal footing" and "avoiding delay, so far as compatible with proper consideration of the issues". Every power exercised by the Tribunal, and every rule or practice direction interpreted, must aim to give effect to this overriding objective. Parties and their representatives also have a duty to assist the Tribunal in furthering this aim and to cooperate generally. Consequently, any decision that causes undue or unjustifiable prejudice to a party would likely be contrary to this fundamental objective.

Prejudice in Extensions of Time for Responses

One of the most common instances where prejudice is explicitly considered is when a respondent applies for an extension of time to submit their response (ET3). The Tribunal has a "broad general discretion" to grant such extensions in the interests of justice. The key principles for this, established in Kwik Save Stores Limited v Swain and others [1997] ICR 49. This case, as confirmed in Grant v Asda UKEAT/0231/162, require the employment judge to consider several factors, including:

The explanation for the delay

Whether it is "honest and satisfactory".

The merits of the defence

Justice often favours an extension if the defence has merit.

The balance of prejudice

Whether the respondent would suffer greater prejudice if the extension were refused than the claimant would if it were granted. This assessment should be made at the point the application to extend was made.

For example, if a respondent is prevented from presenting their defence due to an administrative oversight, and that defence has arguable merits, refusing an extension could cause significant prejudice to the respondent by effectively barring them from the proceedings. Conversely, allowing a late response without proper justification could cause prejudice to the claimant by delaying the resolution of their claim.

Prejudice in Case Management Decisions

The Tribunal possesses broad powers to make case management orders to regulate proceedings. These orders can be varied, suspended, or set aside if "necessary in the interests of justice," particularly when a party affected by an earlier order did not have a reasonable opportunity to make representations before it was made. This mechanism directly addresses situations where a party might be prejudiced by an order made without their input or full understanding.

Similarly, when the Tribunal converts a preliminary hearing to a final hearing, it must be "satisfied that no party is materially prejudiced by the change". The principle of avoiding "procedural or evidential disadvantage" is also key when considering amendments to claims or responses, particularly if new labels for reasons for dismissal are introduced.

Prejudice and Procedural Non-Compliance

A failure to comply with the ET Rules, a practice direction, or a Tribunal order does not automatically render the proceedings void. Instead, the Tribunal may "take such action as it considers just," which could include waiving requirements or striking out a claim or response. This discretion allows the Tribunal to manage non-compliance in a way that avoids disproportionate prejudice. For instance, if an email submission of a response is rejected because it was not accompanied by a screenshot of a system malfunction (as required by the Presidential Practice Direction), the subsequent application for an extension of time allows the Tribunal to consider whether the strict application of the rule would cause undue prejudice, given the circumstances.

Prejudice in Privacy and Reporting Restrictions

The Tribunal can issue privacy orders or restricted reporting orders (RROs) to prevent or limit public disclosure of proceedings, where "necessary in the interests of justice or in order to protect the Convention rights of any person". This often involves balancing the individual's right to privacy (e.g., as protected under Article 8 of the European Convention on Human Rights) against the principles of open justice and freedom of expression (Article 10).

Prejudice in this context can involve:

Reputational damage

The impact of public disclosure on a party's professional life.

Psychological harm

Disclosure of sensitive medical information or personal circumstances that could negatively affect a party's psychological well-being or cause shame and stigma.

Safety concerns

In exceptional cases, fears for personal safety or security if information is publicly disclosed.

For example, the EAT allowed a permanent anonymity order for a claimant in AYZ v BZA [2025] EAT 91 due to an unrelated police report of a sexual assault, finding it necessary to avoid "unacceptable risk of jigsaw identification" and uphold statutory anonymity. Similarly, in AEL v Flight Centre (UK) Ltd [2024] EAT 116, the EAT granted anonymity due to the claimant's distress and fear of significant impact on employment prospects and psychological well-being if their whistleblowing and discrimination claims were publicly associated with their name. These cases highlight how protecting individuals from specific harms and maintaining privacy can outweigh the principle of open justice when prejudice is severe and identifiable.

Prejudice and Vulnerable Parties/Witnesses

The Tribunal has a common law duty of fairness and must adhere to the overriding objective, which gives rise to a "comparable duty" to make reasonable adjustments for disabled service users. This is crucial to ensure that vulnerable parties and witnesses can participate effectively in proceedings and are not placed at a disadvantage. If a disabled party's ability to participate is compromised due to a lack of reasonable adjustments, this constitutes prejudice.

For instance, in Bryce v Trident Group Security Ltd [2022] EAT 137, the EAT remitted a case where a disabled claimant's claim was struck out for non-compliance with an "unless order," because the Tribunal had failed to expressly consider making adjustments for his disability, which affected his communication, memory, and understanding of dates and times. Similarly, in Abanda Bella v Barclays Execution Services Ltd [2024] EAT 16, the EAT clarified that granting permission for a disabled litigant in person to record proceedings, while unlikely to negatively impact the respondent, could significantly alleviate the claimant's "substantial disadvantage" due to memory issues, thus reducing prejudice against them. This proactive approach aims to ensure that no party is prejudiced by their individual circumstances in accessing justice.

Conclusion

In summary, "prejudice" within the Employment Tribunal refers to any disadvantage or harm a party might experience, and its prevention is central to the Tribunal's mandate for fair and just proceedings. Whether in granting extensions of time, managing case progression, determining privacy, or accommodating vulnerable individuals, the Tribunal must continuously evaluate the potential for prejudice to all parties, ensuring decisions are made consistently with the overriding objective and established legal principles.