United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MISS I SIMLER (of Counsel) Messrs Henmans Solicitors 116 St Aldates Oxford OX1 1HA
For the Respondents	MISS LAURA COX QC Instructed by: Colleen Cleary Legal Office UNISON 1 Mabledon Place London WC1H 9AJ


 


MR JUSTICE MORISON (PRESIDENT): This is an interlocutory appeal which has come before us as a matter of great urgency. It relates to tribunal proceedings which are in currency at the present time, and it is anticipated that when judgment has been given in this appeal, the parties will immediately resume their battle at the Reading Industrial Tribunal this afternoon.

The background to the appeal can be shortly stated. Two applications commenced in January and March 1996 whereby the applicants sought relief against the respondent under the Equal Pay Act, the Sex Discrimination Act and Article 119. There were previous directions hearings concerning the matter.

On 25th April 1996 at the respondent's request the Industrial Tribunal stayed the proceedings. They did so because it was represented to them by the employers that a job evaluation scheme was currently in progress but that when it was completed it would mean that there would be no further need for the proceedings to continue. Regrettably, the job evaluation study did not progress as fast as had been anticipated. The applicants became, understandably, impatient with the delay. Accordingly, an application was made to the Industrial Tribunal to lift the stay. That was opposed. The Industrial Tribunal determined that the stay should be lifted. The employers then said that there were two issues which should be determined by the Industrial Tribunal at a preliminary hearing, namely, whether the Originating Applications had any reasonable prospect of success; and whether or not an independent expert, effectively paid for by the tribunal service, should be appointed.

The parties were required to serve on each other experts' reports in relation to these issues, together with witness statements. It was anticipated that the hearing of those preliminary issues would take place on 27th October.

However, at the beginning of October the respondents indicated that they did not wish to maintain that the application had no reasonable prospect of success; and therefore, there was no need for that hearing to take place. But there was a question as to whether an independent expert should be appointed by the tribunal itself. The respondents suggested that such should be instructed. The applicants, as I understand it, opposed that application. The Industrial Tribunal concluded on 27th October that they themselves would not instruct an expert, but that the parties themselves should be at liberty to do so.

The reasons why the Industrial Tribunal arrived at that decision are set out in a written decision, which was sent to the parties following the hearing on 27th October.

There were then further directions given by the Industrial Tribunal as to the experts' reports, the issues that should be addressed, when the experts should meet, and a time limit was put in for the final exchange of reports.

Meanwhile a hearing date for the case had been fixed for five days beginning on 16th March 1998. That was the date to which the parties were working.

It had been anticipated that the experts' final reports would be exchanged as at 6th March 1998, but, as we understand it, it was extended to 9th March, which was only some seven days before the hearing date. On that date exchange took place. On the very same day the respondents then indicated for the first time that they wished their defence to be considered before the question of equal value had been determined.

The provisions of the Equal Pay Act that are relevant to this appeal are set out in s.1(2)(c) which provides:

"(c) where a women is employed on work which, not being work in relation to which paragraph (a) or (b) above applies, is, in terms of the demands made in her of equal value to that of a man in the same employment-

(i) if (apart from the equality clause) any term of the woman's contract is or becomes less favourable to the woman than a term of a similar kind in the contract under which that man is employed, that term of the woman's contract shall be treated as so modified as not to be less favourable, and

(ii) if (apart from the equality clause) at any time the woman's contract does not include a term corresponding to a term benefiting that man included in the contract under which he is employed, the woman's contract shall be treated as including such a term."

and subsection (3) provides:

"(3) An equality clause shall not operate in relation to a variation between the woman's contract and the man's contract if the employer proves that the variation is genuinely due to a material factor which is not the difference of sex ..."

S.2A provides:

"(1) Where on a complaint or reference made to an industrial tribunal under section 2 above, a dispute arises as to whether any work is of equal value as mentioned in section 1(2)(c) above the tribunal may either-

(a) proceed to determine that question; or

(b) unless it is satisfied that there are no reasonable grounds for determining that the work is of equal value as so mentioned, require a member of the panel of independent experts to prepare a report with respect to that question;

and, if it requires the preparation of a report under paragraph (b) of this subsection, it shall not determine that question unless it has received the report."

As I have indicated, it was on 27th October that the Industrial Tribunal decided not to require the preparation of a report by a member of the panel of independent experts. Accordingly, as it seems to us, the Industrial Tribunal was required to "proceed to determine that question"; that is as to whether any work is of equal value as mentioned.

The Rules of Procedure which regulate the hearing of Equal Pay Act claims are to be found in Schedule 2 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993. Those Regulations apply by virtue of Regulation 8(2) of the Regulations which provides:

"(2) In proceedings to which the rules in Schedule 1 apply and which involve an equal value claim, the rules in Schedule 2 (including rule 8A) shall apply in place of rules 4, 9, 10, 12, 13 and 20 in Schedule 1."

In passing, it is to be noted that rule 9 in Schedule 1 governs the procedure at the hearing of a complaint falling within Schedule 1, and gives to the tribunal the power to 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.

Schedule 2, to which we now turn, provides in paragraph 9(1):

"9.-(1) The tribunal shall, so far as it appears to it appropriate, seek to avoid formality in its proceedings and shall not be bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before the courts of law. The tribunal shall make such enquiries of person appearing before it and witnesses as it considers appropriate and, subject to paragraphs (2A), (2B), (2C), (2D) and (2E), shall otherwise conduct the hearing in such manner as it considers most suitable to the clarification of the issues before it and generally to the just handling of the proceedings."

Subparagraph (2E) provides:

"(2E) A tribunal may, on the application of a party, if in the circumstances of the case, having regard to the considerations expressed in paragraph (1), it considers that it is appropriate so to proceed, hear evidence upon and permit the parties to address it upon the issue contained in subsection (3) of section 1 of the Equal Pay Act ... before determining whether to require an expert to prepare a report under rule 8A."

It follows that the application made to the Industrial Tribunal this week, that it should hear first the matters referred to in subsection (3) of s.1 of the Equal Pay Act, was an application made after the time specified in rule 9(2E).

The Industrial Tribunal considered the representations which were made to them on this issue and gave a judgment. In their judgment, they indicate, as we read it a good deal of merit in the submissions from the respondent's counsel, particularly from the point of view of a possible saving to both parties in time and cost. However, Section 2A of the Act obliges them to proceed to determine the question of equal value where it is decided to do so at the initial hearing as an alternative to ordering an independent experts' report. And under rule 9 the tribunal must adopt the procedure which is most suitable to the clarification of the issues before it. The equal value issue is an issue before the Tribunal and which the tribunal felt had to be clarified.

They then indicate in paragraph 11 that:

"Both parties have gone to considerable expense in preparing their own expert's reports and arranging for these experts to attend the Tribunal for the purposes of giving evidence. The procedure available under Rule 9(2E) takes place before the Tribunal determines whether to require an expert or to prepare a report under Rule 8A, in other words before the expense of that has been incurred."

The tribunal continue:

"The situation here is quite different because although there is no independent expert's report both parties have already incurred considerable expense in having their own report.

12 The respondent's defence has been pleaded for approximately two years and we see no reason why today's application was not made at the October 1997 hearing.

13 It is for all these reasons that we believe that the case should be heard in the normal way without hearing, firstly, by way of a preliminary issue, part of the defence of genuine material factor. Moreover, we believe that there would be a risk of possible confusion were this defence to proceed in part only and that this could produce an altogether unsatisfactory state of affairs. We so decide."

In paragraph 5 of the decision, the Industrial Tribunal had indicated that under Rule 9(2E) of their Rules, if the tribunal having regard to the considerations expressed in paragraph (1), considered that it was appropriate so to proceed, it would hear evidence on and permit the parties to take the defence before the claim of equal value. For present purposes it is convenient to refer to this by analogy with the cart and the horse, and the question therefore arises as to whether the Industrial Tribunal were entitled to conclude, in this case, that it was not appropriate to put the cart before the horse.

In support of an appeal against the Industrial Tribunal's decision, Miss Simler has submitted to us that the Industrial Tribunal effectively improperly constrained the exercise of their own discretion. She submits to us that the effect of rule 9(2E) was not to disentitle the Industrial Tribunal from deciding that the cart should be taken before the horse, even where the time specified in Rule 9(2E) had long passed as in this case. She submitted that the tribunal retained a general discretion under Rule 9(1) to put the cart before the horse even though the time specified in 9(2E) had expired.

For the applicant, the respondents to this appeal, Miss Cox has supported the tribunal's approach to this question both by reference to s.2A of the 1970 Act and by reference to the proper interpretation of the Rules of Procedure.

It is regrettable that this appeal has come to us in circumstances where we have had but very limited time to consider the papers in this case. We do not criticise the parties for that, but the fact remains that this is not a case where any of us have had an opportunity to give the sort of mature reflection that would be required for the determination of a point of some importance as to the operation of Rule 9(1) having regard to terms of Rule 9(2E).

That said, it is our present view that the Industrial Tribunal did not have a discretion to put the cart before the horse in the circumstances of this case, because the time for consideration of that matter arises, and arises only, at the time specified in Regulation 9(2E).

We do not determine the appeal on that basis. It seems to us, contrary to the submission of Miss Simler, that the Industrial Tribunal itself went on to consider how they should exercise their discretion on the facts of this case. They have placed reliance, rightly, in our judgment, on the fact that the parties have been preparing themselves for the equal value issue to be determined, and have incurred considerable expense in so doing. The parties have prepared and exchanged expert's reports. The Tribunal have also taken into account the fact, as is unquestionably the case, that if the employers had felt that their defence under s.1(3) was of such a nature that it should be heard in advance of the equal value issue, they had had plenty of opportunity to make that representation. The employers could, and it seems to us, should have asked the Industrial Tribunal on 27th October for such an order before the expense of experts had been incurred. The purpose of the rule seems to us to be clear. The parties should determine the way they are going to conduct their case in the absence of having incurred substantial expenditure, either the tribunal itself instructing an independent expert or the parties themselves incurring that cost. It seems to us that there is a further reason why it is sensible for the rules to be applied as the Industrial Tribunal did, which is that the issue as to whether cart should be taken before the horse should be determined, as it seems to us, at a time when it is uncertain as to what the result would be of expert evidence in relation to the equal value issue. It seems to us to be entirely unsatisfactory that a party should decide that it wishes to raise one part of its defence only after everybody has obtained expert evidence and after it becomes plain that they would fail on the equal value aspect of the claim. The way the rules are framed is to encourage, if not to require, decisions to be taken before expert's reports have been obtained.

In addition, as it seems to us, the Industrial Tribunal were well entitled to conclude that it was unsatisfactory to split the defence under s.1(3) in the way in which the appellants have been suggesting. It is accepted by the employers that their s.1(3) defence to some extent overlaps with the expert evidence. Therefore, what they are seeking to do is to isolate just two aspects of their s.1(3) defence which they say does not have an overlapping effect. The tribunal's conclusion that they believe that there would be a risk of possible confusion were this defence to proceed in part only, and that it could produce an altogether unsatisfactory state of affairs, is a position which is perfectly legitimate, as it seems to us, for them to have arrived at.

It seems to us at the end of the day, once one has recognised and accepted that the Industrial Tribunal has exercised a discretion, that this appeal must be dismissed. This court will not interfere with the case management decisions which have been sensibly taken by an Industrial Tribunal, who, after all, know very much more about the case than we can possibly do, having become acquainted with it for the first time this morning.

Accordingly, for the reasons I have attempted to give, we are quite satisfied that the Industrial Tribunal was entitled to reach the conclusion that the cart in this case should not be put before the horse. The appeal must be dismissed.