Appeal No. EAT/328/01

EMPLOYMENT APPEAL TRIBUNAL
SITTING AT THE ROYAL COURTS OF JUSTICE,
STRAND, LONDON, WC2A 2LL

	At the Tribunal
	On 13 September 2001

Before
HIS HONOUR JUDGE D SEROTA QC
MS H PITCHER
MS B SWITZER

MRS MAUREEN LEVY	APPELLANT

DUDLEY BOWER FACILITIES MANAGEMENT LIMITED	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	MS N BRAGANZA
(of Counsel)
Instructed by:
Messrs Woolsey Morris & Kennedy 
Solicitors
100 Station Road
Sidcup
Kent 
DA15 7DT	

JUDGE D SEROTA QC

1	This case concerns an appeal by Mrs Maureen Levy against a Decision of the Employment Tribunal at London (South) which heard a number of complaints made by her.  These included a complaint for unfair dismissal, and a complaint relating to equal pay.

2	Summary Reasons for the Decision were given on 30 June, and Extended Reasons, in both cases, I think, on 15 January were sent to the parties.  Findings were made in favour of Mrs Levy in relation to her claim for unfair dismissal; we need say nothing further about them, but her claim in relation to equal pay was dismissed.  

3	We would make this observation at the outset: it is a matter of very great regret that the Notice of Appeal, drafted by Ms Braganza, is dated 22 February, yet it was only today that we received an additional bundle and a Skeleton Argument. Included in that bundle is a statement from Mrs Levy, dated 10 September and an expert’s letter dated 11 September of this year; we have looked at these de bene esse.  We were unimpressed with the reasons advanced for the failure to provide the Skeleton earlier, and to make available at an earlier stage, the additional documents upon which Mrs Levy wished to rely.  

4	In its original Summary Reasons, given on 30 June, the Employment Tribunal said the complaints under the Equal Pay Act were the subject of evidence on 19 April, and consideration in chambers on 28 June.  The Employment Tribunal decided the complaints under the Equal Pay Act were not well-founded and should be dismissed.  They then said that the matter would be explained further in detailed Reasons that would be supplied, but in fact, we note were not supplied until 10 January of this year.  

5	We should note, as well, that there was an Interlocutory Order made on 12 April 1999 in which directions were given in relation to the claims brought by Mrs Levy.  A number of directions were given, but the Tribunal indicated, and I now quote from paragraph 9 that:
“9.  The hearing of the Applicant’s unfair dismissal complaint is listed with the agreement of the parties for hearing before a full tribunal for two consecutive days commencing on Thursday 13 May 1999 and continuing on Friday 14 May 1999 ……….. At the same time the tribunal will give further directions for hearing of the Applicant’s equal pay claim.”

It would seem that no such directions, as envisaged, were ever given.  When the matter was considered by the Employment Tribunal, there was no discussion or debate with the parties, so Ms Braganza says, in relation to an expert.  I now quote from paragraph 21 of the Extended Reasons:
“It is common ground that there was no relevant job evaluation study, and therefore no obstacle to the Applicant putting forward a complaint based on the alternative basis, that she was engaged on work which is of equal value to that of the comparators.  The procedural rules applicable to this part of the case are set out in Schedule II to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993.  Rule 8(A) sets out the procedure relating to an experts report.  Neither party in this case has ever suggested that it was desirable that an expert should be instructed.  The case has proceeded on the basis that it was a judgment for the Tribunal to make on the evidence put before it by the parties.”

6	The Tribunal, in paragraph 22, concluded that Mrs Levy had not satisfied the Tribunal that she was engaged on light work with her comparators.  In relation to the complaint that she carried out work of equal value, the Tribunal said this:
“We have set out the evidence which has been put before us, including the very helpful analysis prepared by Ms Levy.  We do not consider it to be sufficient and satisfactory evidence to allow us to arrive at a conclusion at all, and therefore a conclusion in favour of Mrs Levy.  We are unable to ascertain a sensible and cogent basis for making the comparison concerned.  As we have already noted, the quality of the evidence before us is in many ways unsatisfactory, and tainted by the events which have occurred in relation to the dismissal of Mrs Levy by the Respondent.”
They then say this:
“With the benefit of hindsight, it might have been helpful to have an expert’s report.  However, it would have been an obvious difficulty  for such an expert that he or she would have been in no better position than the Tribunal in trying to distinguish fact from comment, and would have been dependent upon analysing work done by the employees concerned at a time when the comparison could no longer be made i.e Mrs Levy was no longer doing the job she did, and she had not been replaced by anybody else.  Added to that has been the redundancy and reorganisation exercise to which we have referred in the extended reasons in the unfair dismissal complaint.”
7	Ms Braganza submits that it is fairly arguable that the Tribunal misdirected itself in relation to Rule 8(A) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations and she drew our attention to the Decision of this Tribunal in the case of Wood v William Ball [1999] ICR 277.  She submits that the Employment Tribunal appears to have failed to direct itself, firstly, as to the need to give directions which it said it was going to give in its Interlocutory Decision, and secondly to consider and discuss with the parties, whether or not an expert should be called, either by the parties or by the Tribunal.  The reasoning of the Tribunal is very short on this matter and Ms Braganza submits, and she supports this with a statement from Mrs Levy, that the question was simply not raised at all, and that therefore, the Employment Tribunal failed to consider whether or not either the parties or the Tribunal should call an expert.  Ms Braganza points out that as Mrs Levy was in person, she was entitled to expect assistance from the Tribunal which should, to some extent, have taken a pro-active role in determining whether or not an expert should be called.  We need say no more about this matter because it seems to us that it does raise an issue which should be considered at an appeal, and therefore on this aspect of the case, the matter should go forward.

8	Ms Braganza also seeks to complain in relation to findings on the question of redundancy.  I refer to paragraphs 9 and 10 of her Skeleton Argument.  However, this is an issue raised by her for the first time today; it seems to us to be a long way out of time and we are not prepared to permit the Notice of Appeal to be amended so as to raise questions in relation to redundancy.  In any event, it seems to us that although the reasoning of the Employment Tribunal may be brief, there are no adequate grounds for challenging its Decision.  

9	In the circumstances, the appeal will go forward and we will now consider what directions to give.  Half a day, listing category C, Skeleton Arguments and copies of authorities to be lodged not later than fourteen days after the hearing