Thread by @JasonBraier

1/ Mendy v Motorola: Strike out of a claim (here an inadvertent strike out!) is not allowed at a closed PH (r.56 ET Rules), but if made at one it can't be revoked under r.29 but can only be remedied by reconsideration or appeal.
bailii.org/uk/cases/UKEAT…
#ukemplaw

2/ C brought a lengthy claim, which included within it an indirect discrim claim. However, in an order following a closed PH, an EJ found there was no pleaded indirect claim at present & ordered C would need to apply to amend to pursue any such claim.

3/ On C appealing & getting through the sift at a r3(10) hearing, the EJ sought to revoke his earlier order and also to suggest he hadn't struck out any indirect claim, but if it was found that he had done so, he invited the parties to apply for reconsideration.

4/ C then asked for this revocation to be revoked as he wished the appeal to proceed. R's position was that it didn't object to the EJ's revocation of his 1st order.

5/ Going through the ET Rules, the EAT noted that r.56 requires strike out to be at a public hearing & that the power to revoke in r.29 applies to a case management order & not a judgment. Strike out would be a judgment.

6/ The EAT noted that no party had sought reconsideration of the EJ's original order, though it was open to the EJ to do so on his own initiative, but that course of action hadn't been taken.

7/ The EAT accepted the EJ hadn't intended to strike out an extant claim, but the effect of the order had been to determine the indirect discrim claim & bring it to an end absent any application to amend. That was tantamount to strike out.

8/ Moreover, as a strike out, this was thus a judgment rather than case management order, such that its later revocation was of no effect.

9/ The strike out was in error of law given that it was in breach of r.56 to make such a final determination at a closed PH. The order was thus set aside. There was obviously the additional factor that the EJ recognised he shouldn't have made the order even if he had power to.