United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 482_95_1805

Appeal No. EAT/482/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 18 May 1995

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR J M SCOULLER

MR N WILLIS

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PAULA LANCASTER DENTAL PRACTICE          APPELLANTS

MISS M K FAIRCLOUGH          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR J JENNINGS

(Personnel Consultant)

Acton Jennings Consultancy

18 Rishworth Street

Wakefield

WF1 3BY

For the Respondent NO APPEARANCE BY OR ON BEHALF OF RESPONDENT


 


MR JUSTICE MUMMERY (PRESIDENT): These are two appeals against decisions of the Chairman of the Industrial Tribunal in proceedings due to be heard next Wednesday 24 May. The proceedings are brought by Miss Maxine Fairclough, who alleges unfair dismissal for reasons connected with pregnancy. She was an associate dentist with the Paula Lancaster Dental Practice, the Respondent to the proceedings. The proceedings were started by an originating application presented to the Industrial Tribunal on 22 August 1994. The application contains the usual details of employment, salary, and so on. In the space for details of the complaint, this is said:

"On finding out that I was pregnant, Miss Lancaster did all that she could to get rid of me until she finally, dismissed me."

The date of dismissal is given as 10 June 1994. The case is fought on the grounds of defence stated in the Notice of Appearance dated 15 September 1994. The first line of defence is that Miss Fairclough was self-employed and was not dismissed, within the meaning of the 1978 Act Section 55. Alternatively, if the Tribunal finds she was an Employee, it is argued that she was fairly dismissed within the meaning of Section 57. In either case, the Paula Lancaster Dental Practice argue that the actions taken were fair, reasonable, and did not constitute discriminatory treatment on the grounds of sex.

These appeals are from two decisions of the Chairman. The first application was a request for further and better particulars, with a covering letter dated 6 March. The letter sent by the Acton Jennings Consultancy, acting for the Paula Lancaster Dental Practice, said simply:

"Please find enclosed our request for further and better particulars.

Given the proximity of the hearing we should be grateful for a response within 7 working days."

The request is as follows:

"Of the statement `On finding out that I was pregnant, Miss Lancaster did all that she could to get rid of me'

Please state in detail, giving actual dates where possible, what precisely it is alleged that Miss Lancaster did to `get rid' of the applicant prior to the termination of the contract."

The request was refused by a letter of 28 March, written on behalf of the Chairman. His direction was:

"... The request is a for a matter of evidence which the applicant will have to adduce at the hearing as part of her case."

On 17 April the Acton Jennings Consultancy wrote another letter to the Regional Office of the Industrial Tribunal, referring to the unsuccessful application for further and better particulars:

"We respectfully submit that the IT1 does not make out a case of sex discrimination. However, the SD74 questionnaire procedure was used and this sets out what might be considered further details of the Applicant's case.

In the circumstances, we ask the Tribunal to rule that evidence in the Applicant's case to support the contention in IT1 be limited to that which has been pleaded and is contained in the questionnaire SD74 and nothing more."

The response on 20 April was the direction of the Chairman as follows:

"It is for the tribunal hearing the case to decide what evidence is relevant and what should be excluded."

Both decisions were appealed by separate Notices of Appeal served on this Tribunal on 9 May. Mr Watson Jennings has argued the case. As regards the refusal of particulars, he contends that there is an error of law. His submission is that the Applicant has not provided sufficient details on the IT1 for his client to prepare the case for the Industrial Tribunal hearing. His client is entitled to know what is alleged; what specific actions by his client are alleged to amount to unlawful discrimination on the grounds of sex. He argues that the appeal should be read in conjunction with the other appeal.

The other appeal is against the request for a ruling confining the Applicant's case to what is said in the IT1 and SD74 questionnaire. The refusal to give that ruling is challenged. It is said to be in error of law, because, in the absence of any further and better particulars, it is only right that the case should be confined to the incidents referred to in the documents. A similar argument is deployed that, in order to prepare properly for the Industrial Tribunal, Mr Watson Jennings' client is entitled to know whether Miss Fairclough seeks to raise any other matters in connection with her case; that she has been unlawfully discriminated against on grounds of sex. If Miss Fairclough, through her representatives, chooses not to avail herself of the opportunity to provide further and better particulars, she should be debarred from raising any other matter than those set out in the two forms.

Those are the arguments that Mr Watson Jennings has advanced this morning. He has referred us to two rules and a case. The Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 Rule 1(1)(c) provides that:

"An originating application shall state the grounds with particulars on which the relief is sought"

He has also referred to Rule 4(1)(a) under which a Tribunal may require a party to furnish further particulars of the grounds on which he relies and any facts and contentions relevant thereto.

He has referred to the Decision of the Court of Appeal in Chapman v Simon [1994] IRLR 124, a race relations case with similar principles about the pleading of cases. He referred us to passages in the judgment of Lord Justice Balcombe and Lord Justice Peter Gibson, to the effect that a complainant is entitled to complain of discrimination, but it is the act of which complaint is made and no other that the Tribunal has to consider and rule upon. If the complainant has not actually complained of an act then, subject to provisions about amendments, it is not right that the Tribunal should consider and rule upon it.

During the course of his submissions, Mr Watson Jennings provided us with the questionnaire in this case; enclosed in the questionnaire are detailed notes made by Miss Fairclough, giving dates and her version of events which led up to her dismissal; there are twelve pages of notes commenting upon what happened on various days in March 1994, April, May and June down to the dismissal. That is in the possession of the Respondent. So that the Respondent knows what is alleged to have taken place on those days.

We have decided that neither of these appeals should be allowed, because Mr Watson Jennings has been unable to identify any error of law in the two rulings of the Chairman. Both rulings are to the same effect, that these matters can be raised before the Tribunal; they are matters of evidence. What evidence the Applicant will produce is up to the Applicant. The Tribunal will decide what evidence is relevant and what should be excluded. In our view, those are correct directions. Under the Industrial Tribunal Rules the Tribunal has a wide discretion to decide how the hearing should be conducted, what complaints can properly be considered and what evidence is admissible. Under Rule 9, the Tribunal has a discretion to make such enquiries of persons appearing before it and witnesses as it considers appropriate and shall otherwise conduct the hearing in such manner as it considers most appropriate for the clarification of the issues before it and generally to the just handling of the proceedings. It is made clear that the Tribunal is not bound by rules as to the admissibility of evidence that apply in Courts of Law. Rule 13 provides that, subject to the provisions of the Rules a Tribunal may regulate its own procedure. It will rule upon questions of relevance. It will hear objections which have not been raised in the pleadings which have taken the Respondent by surprise.

All of the arguments which Mr Watson Jennings has put before the Chairman of the Tribunal in correspondence and before us on this appeal are, in our view, properly matters to be raised at the hearing of the Tribunal. In our view, the way in which this matter can be dealt with by Mr Watson Jennings is as follows: it is open to him to send to the Tribunal a copy of the questionnaire and the enclosed notes and to send with it a covering letter, saying that it will be his clients' contention at the hearing next week that the Applicant may only raise matters which are dealt with in the IT1 or in the questionnaire and no other. It will be open to Mr Watson Jennings to send a copy of his letter to the Applicants and her solicitors, making the position clear. If there is any question raised next week which is not covered by the questionnaire or the IT1, Mr Watson Jennings can make submissions to the Tribunal. The Tribunal can rule whether the evidence can be given and whether the particular complaint can be pursued.

This was an unnecessary appeal against rulings that were correct. The matter should have been left there. We dismiss both appeals.