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Group claimants not entitled to re-open issue following preliminary hearing

on Wednesday, 29 May 2024.

The Employment Appeal Tribunal (EAT) has found that a group of claimants was not entitled to re-introduce an issue determined at a past preliminary hearing in which they did not participate.


In the case of Pady and others (the FDA claimants) v HMRC, 20 claimants supported by the FDA trade union (the FDA claimants) brought age discrimination claims in relation to redundancy payments under the Civil Service Compensation Scheme. Several other claimants had brought claims raising the same issues, and this prompted the President of Employment Tribunals to issue a Presidential Case Management Order (PCMO) directing the claims to be managed together.

A preliminary hearing was listed to determine whether the respondent's objective justification defence to the age discrimination claims could stand. The issue was to be determined using sample cases and the FDA claimants were told about the preliminary hearing in advance. They did not make any application in respect of the hearing but did send a legal observer to attend on their behalf.

At the preliminary hearing, the Tribunal accepted the respondent's objective justification defence. The sample claims were dismissed, and the Tribunal considered that the remaining claims should be struck out as having no reasonable prospect of success.

FDA claimants' objection

The FDA claimants objected to this proposal. They argued that they had not been involved in the case management stages relating to the sample claimants. They said they wished to obtain expert evidence that would be material to the defence of the claims. The Tribunal nevertheless struck out the FDA claimants' claims, and the FDA claimants appealed to the EAT.

EAT outcome

The EAT dismissed the appeal. The FDA claimants had been entitled to "sit on their hands" during the preliminary hearing. However, had they sought to participate, their participation would have been accommodated. Having chosen not to participate in the preliminary hearing, it would be undermining of the Tribunal's case management powers to then be permitted to re-litigate the same issue.

The EAT also found that the Tribunal had been entitled to conclude that the evidence on which the FDA claimants wanted to rely would not have changed the outcome and could also have been sourced before the original preliminary hearing in any event.

Learning points

This case offers a useful learning point for parties to group litigation, particularly where cases have been grouped together under a PCMO. Parties should think carefully about the extent to which they should seek to participate in preliminary hearings involving sample claims, particularly where the issue to be determined may have a material impact on a claimant's ability to advance their own claim.

For more information or advice, please contact Michael Halsey in our Employment team on 07554 432 829, or complete the form below.

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