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Does Mitchell apply in tribunals?

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Thanks to Peter Taheri of 5 Essex Court for preparing this case summary

Does the strict post-Mitchell approach apply to case management in the employment tribunals as it does in civil litigation?

No, not directly, held Langstaff P in the important judgment in Harris v Academies Enterprise Trust (EAT).

Employment tribunals are not required to deal with claims as if the Civil Procedure Rules applied, but they are entitled to take a stricter line than previously and regard must be had to the insight given by cases such as Mitchell into that which constitutes justice. Langstaff P applied the point made by Smith LJ in Governing Body of St Albans Girls’ School v Neary that the Employment Tribunal Rules are different from those of the civil courts. As the Employment Tribunal Rules were re-drafted and brought into force in 2013, with full knowledge of the civil courts’ new approach, Parliament’s decision to adopt a different regime in the employment tribunal was a conscious one.

However, significantly, Langstaff P also held that:
- overall justice means that each case should be dealt with in a way that ensures that other cases are not deprived of their own fair share of the resources of the Court;
- justice must be delivered within a reasonable time;
- in considering the justice of the matter, the employment tribunal must have regard to cost.

Decisions made in the employment tribunal can accommodate such post-Mitchell considerations because the employment tribunal has to deal with a case fairly and justly. Justice is a wide concept.

It would be entirely appropriate in a suitable case for the employment tribunal to take account of this “wider view of justice” – and so to take a stricter line than previously; but here, as the employment tribunal did not misstate the existing principles in employment law, the employment tribunal did not err in law.

Paragraphs 33-40 of Harris in particular merit careful reading.