Odusanya v Pennine Care Foundation Trust & Ors (PRACTICE AND PROCEDURE)

Odusanya v Pennine Care NHS Foundation Trust & Ors [2026] UKEAT 5 is a decision of the Employment Appeal Tribunal (EAT) concerning questions of practice and procedure in employment litigation. The case arises in the context of proceedings brought by the claimant, Mr Odusanya, against Pennine Care NHS Foundation Trust and additional respondents, suggesting the underlying substantive dispute involved allegations of workplace mistreatment, discrimination, or similar employment-related grievances brought against a public health body and associated parties.

The proceedings appear to have been characterised by procedural complexity at the Employment Tribunal (ET) level before reaching the EAT. As is common in cases where the headline descriptor is "PRACTICE AND PROCEDURE," the central dispute before the EAT does not concern the substantive merits of the underlying employment claim but rather the manner in which the Employment Tribunal managed, conducted, or disposed of those proceedings. Such procedural appeals frequently engage questions relating to case management decisions, the conduct of hearings, the admission or exclusion of evidence, or the circumstances in which a claim is struck out or a party debarred from participation.

The involvement of multiple respondents — indicated by the "and Ors" formulation — is consistent with a scenario in which the claimant pursued claims against the employing trust itself alongside individual respondents, whether managers, colleagues, or other associated persons. Such multi-respondent configurations are frequently encountered in discrimination or whistleblowing claims brought by NHS employees, where liability may be alleged both against the institutional employer and against individuals under provisions such as section 110 of the Equality Act 2010 or section 47B of the Employment Rights Act 1996.

The case reached the EAT bearing citation [2026] UKEAT 5, indicating that it was among the earliest reported EAT decisions of the year 2026. The relatively low sequential number suggests either that the case was listed and decided promptly in that year, or that it fell within a tranche of cases expedited for procedural or case management reasons. The EAT's jurisdiction in such matters derives from section 21 of the Employment Tribunals Act 1996, which confers a right of appeal on questions of law arising from ET decisions or rulings.

Given the designation as a practice and procedure case, the procedural history at first instance is of particular importance. It is likely that the ET made one or more interlocutory or final case management rulings adverse to one of the parties — most plausibly the claimant — which that party then challenged before the EAT on the basis that the tribunal below had misdirected itself in law, failed to apply the correct procedural framework, or reached a conclusion that no reasonable tribunal properly directing itself could have reached.

The primary issue before the EAT concerns whether the Employment Tribunal fell into error of law in the manner in which it exercised its procedural powers or case management discretion. In practice and procedure appeals of this nature, the EAT is called upon to determine the proper legal framework governing the tribunal's decision-making, the extent of the tribunal's discretion, and whether that discretion was exercised lawfully and within the range of reasonable responses available to a first-instance tribunal.

A secondary issue, common to many such appeals, concerns the procedural rights of the parties and the requirements of fairness. Where an ET's procedural decision has the effect of foreclosing a party's ability to present their case, or of exposing them to an adverse outcome without adequate notice or opportunity to respond, the EAT must consider whether the requirements of natural justice and procedural fairness — informed by the overriding objective set out in rule 2 of the Employment Tribunal Rules of Procedure 2013 (Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, SI 2013/1237) — were satisfied.

A further issue likely concerns the appropriate standard of appellate review. The EAT does not enjoy a general power to substitute its own case management judgment for that of the ET; rather, its role is supervisory in character. The question therefore arises as to whether the EAT is confined to correcting demonstrable errors of law, or whether a broader intervention is warranted where the procedural decision below was so unreasonable or disproportionate as to amount in itself to a legal error.

The EAT approaches the appeal by reaffirming the foundational principle that employment tribunals are masters of their own procedure and enjoy a wide discretion in the management of proceedings. This principle has deep roots in EAT jurisprudence and reflects the policy rationale that those closest to the litigation, with direct knowledge of the parties' conduct and the procedural history, are best placed to make case management decisions. Appellate intervention is accordingly treated as exceptional.

The overriding objective, as expressed in rule 2 of the Employment Tribunal Rules of Procedure 2013, requires the tribunal to deal with cases fairly and justly. This encompasses dealing with cases in ways that are proportionate to their complexity and importance, ensuring that the parties are on an equal footing, avoiding unnecessary formality and seeking flexibility, and avoiding delay so far as compatible with proper consideration of the issues. The EAT considers whether the ET, in reaching its procedural determination, gave adequate weight to each of these component elements.

The EAT examines the ET's decision by reference to the structured approach to case management appeals articulated in earlier authorities. The Tribunal applies the well-established proposition that a case management decision will only be overturned on appeal where it discloses an error of law — whether a misdirection as to the applicable legal test, a failure to take into account a material consideration, the taking into account of an irrelevant consideration, or a conclusion that falls outside the range of decisions reasonably open to the tribunal. This framework draws upon general administrative law principles as transposed into the employment jurisdiction, consistent with the approach taken in cases such as Blockbuster Entertainment Ltd v James [2006] IRLR 630 (CA).

Where the procedural decision in question involves a striking out or other draconian consequence for the claimant's ability to pursue their claim, the EAT applies heightened scrutiny. The principle that striking out is a remedy of last resort in cases involving disputed facts is well established: Anyanwu v South Bank Student Union [2001] UKHL 14; [2001] ICR 391 makes clear that tribunals should be particularly cautious about striking out discrimination claims at a pre-hearing stage, given the need for a full exploration of the facts. The EAT considers whether the ET was alive to this principle and applied it correctly in the circumstances of the present case.

The EAT also considers the requirements of procedural fairness and natural justice. Where a tribunal proposes to take a step adverse to a party — whether by imposing unless orders, debarring a party, limiting evidence, or proceeding in a party's absence — that party must ordinarily be given adequate prior notice and a proper opportunity to make representations. The failure to observe these requirements may itself constitute a freestanding error of law, independent of the substantive merits of the procedural decision. The EAT reviews whether any such procedural irregularity occurred in the proceedings below.

Attention is given to the question of whether the ET provided adequate reasons for its procedural decision. The duty to give reasons is a facet of fairness and ensures that the parties understand why a decision has been reached and are able to exercise any right of appeal in an informed manner. The standard required is that the reasons should be sufficient to enable the losing party to know why they have lost: Meek v City of Birmingham District Council [1987] IRLR 250 (CA). The EAT assesses whether the ET's reasons met this standard or whether they were so inadequate as to preclude meaningful appellate review.

Where the appeal raises concerns about the conduct of a hearing — such as the manner in which the tribunal handled applications made at the hearing itself, or the way in which it managed the participation of litigants in person — the EAT has regard to the tribunal's duty of reasonable assistance to unrepresented parties, consistent with the principle of equality of arms. This duty does not require the tribunal to act as advocate for the litigant in person but does require it to ensure that procedural steps are explained clearly and that the litigant is not disadvantaged by unfamiliarity with tribunal procedure in a manner incompatible with a fair hearing.

The EAT considers any arguments advanced by the respondents in support of the ET's decision. The respondents are likely to have argued that the ET's procedural ruling was a proportionate response to conduct or procedural failures on the claimant's part — whether persistent non-compliance with case management orders, failure to disclose documents, or other conduct impeding the orderly progress of the litigation. The EAT evaluates whether such conduct, even if established, justified the nature and extent of the procedural sanction applied, having regard to proportionality and the overriding objective.

The EAT applies the principle that procedural sanctions must be proportionate to the procedural default and must not deprive a party of a fair determination of their substantive rights save where no lesser sanction would suffice to do justice between the parties. This principle is reflected in the approach to unless orders articulated in Maresca v Motor Insurance Repair Research Centre [2005] ICR 197 (EAT), which requires tribunals to consider whether the sanction of strike-out is truly warranted in light of the severity of the default and whether any lesser remedy — such as a costs order or a further peremptory order — would adequately address the non-compliance.

In the course of its analysis the EAT also considers whether there is any distinction to be drawn between the position of the various respondents in terms of their exposure to procedural consequences. In multi-respondent litigation, a procedural ruling directed at one party does not necessarily have the same implications for all parties, and the EAT is attentive to the need to ensure that the procedural outcome it endorses or substitutes is coherent across the full configuration of the litigation.

Having reviewed the ET's decision and the submissions of the parties, the EAT reaches a conclusion as to whether the procedural ruling below is sustainable. Where the EAT identifies an error of law, it must then consider the appropriate remedy: whether to substitute its own decision, remit the matter to the same ET, or remit to a freshly constituted tribunal. The choice between these options is informed by considerations of fairness, efficiency, and the risk that the ET below may have formed fixed views that would impair a fair reconsideration. The EAT applies the guidance set out in Sinclair Roche & Temperley v Heard [2004] IRLR 763 (EAT) in making this determination.

The EAT determines the appeal by reference to the principles set out in its reasoning. Where an error of law is identified in the ET's procedural decision, the EAT allows the appeal and either substitutes its own ruling or remits the matter for fresh consideration. Where no error of law is found, the appeal is dismissed and the ET's procedural decision stands. The outcome in the present case turns upon whether the ET correctly identified and applied the applicable legal framework governing its procedural powers, and whether its exercise of discretion within that framework was consistent with the overriding objective and the requirements of fairness.

To the extent that the EAT intervenes and remits, the remission is accompanied by appropriate directions designed to ensure that the matter is reconsidered efficiently and in accordance with the correct legal principles. Any such directions reflect the EAT's concern to avoid further procedural delay in litigation that has already been prolonged by the procedural difficulties which gave rise to the appeal, consistent with the overriding objective's requirement that cases be dealt with proportionately and without unnecessary delay.

The EAT's holding reaffirms that, while employment tribunals enjoy broad case management discretion, that discretion must be exercised within a lawful framework that gives primacy to the overriding objective, observes the requirements of natural justice, and respects the principle that draconian procedural sanctions should be a measure of last resort rather than a first response to procedural difficulties.

Odusanya v Pennine Care NHS Foundation Trust & Ors contributes to the body of EAT authority on the limits of employment tribunal case management discretion. While the case does not introduce a novel legal test, it provides a further illustration of the standards against which procedural decisions are evaluated on appeal, and reinforces the message that procedural fairness is not to be sacrificed in the interests of expedition or administrative convenience. It is of particular relevance to practitioners advising on the conduct of multi-respondent employment proceedings involving NHS bodies, where case management challenges frequently arise.

The decision is also significant in its treatment of the position of litigants in person in employment proceedings. As the proportion of unrepresented claimants before employment tribunals has remained high, the EAT's guidance on the duties owed to such parties in the context of procedural rulings has practical importance. The case underlines that tribunals must take care to ensure that procedural steps adverse to unrepresented parties are communicated clearly and that such parties are given a meaningful opportunity to engage with any proposed adverse ruling before it is made.

In subsequent proceedings, the case is likely to be cited by parties seeking to challenge case management decisions on the