United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR W R HARLAND (Partner)
For the Respondents	MR S J HILLS (Solicitor) Halliwell Landan St James's Court Brown Street Manchester M2 2JF


 


MRS JUSTICE SMITH: This is an appeal against an Interlocutory Order made by an Industrial Tribunal Chairman sitting alone, following a hearing on 1 April 1998. The decision was promulgated on 17 April 1998.

The history of the matter is as follows. From April 1996 the Appellant, Ms Samantha Hambly was employed by the First Respondents, Rathbone Community Industry Ltd, as an Instructor Supervisor at their premises at Whitley Bay. She was in charge of the Administration Section and her function was to train people to perform administrative duties with a view to placement in a job.

The Second Respondent, Anthony Groves, was appointed as manager of the Whitley Bay Centre from September 1996. He was the Appellant's line manager.

On 28 July 1997 the Appellant resigned from her post. She immediately made allegations of sexual harassment against the Second Respondent, covering the whole period in which they had worked together and culminating in the events of that day, 28 July, which she said had triggered her resignation.

Under the grievance procedure the First Respondent commenced an investigation into the Appellant's allegations. However, the Appellant withdrew from the procedure before it was complete.

On 2 October 1997 the Appellant served a long questionnaire on the First Respondent under the provisions of the Sex Discrimination Act 1975. The First Respondent provided some replies on 20 November 1997, but declined to answer many questions on the ground that they were not relevant.

On 26 November 1997 the Appellant filed her application at the Industrial Tribunal alleging sex discrimination. Her allegations were in summary form but she annexed the questionnaire and responses to her application. Those documents covered many pages. The detailed allegations were not set out at all clearly. Ms Hambly was not legally represented. She was assisted by her partner, Mr Harland, who is not legally qualified.

During the ensuing weeks disputes arose between the parties as to the extent of discovery to be provided. On 16 January 1998 the parties went before Mr Mason, the Chairman of Industrial Tribunals for directions. He directed the Appellant to provide full particulars of her complaints under three separate headings as follows:

"(a) all facts, matters and incidents relied upon by the applicant, chronologically set out, in support of the allegation that the second respondent embarrassed, humiliated and intimidated the applicant, giving particulars of the crude and lewd language of a sexist nature complained of, including full particulars of the events alleged upon 28 July 1997;

(b) all facts, matters and incidents relied upon by the applicant, chronologically set out, in support of the allegation that the second respondent treated the applicant differently and less favourably than he did male members of staff identifying, so far as possible, the date and place of each allegation, those present and if it is the case that in relation to each incident the applicant seeks to compare her treatment to a particular member of staff, identifying that person;

(c) all facts, matters and incidents relied upon by the applicant, chronologically set out, in support of the allegation that the investigation into the applicant's grievance not carried out properly, placed the applicant at a disadvantage and was not thorough, fair and objective."

On 2 March 1998, the Appellant and her partner produced a 17 page document in response to the Chairman's order. In it, the Appellant said first that she could not be sure that she had described the incidents in chronological order; she would be unsure of many dates until she had obtained discovery of documents. Also, she made the general point that she did not think it satisfactory that she had to break her allegations down into separate incidents as requested. She considered that the whole course of the conduct should be examined to see its cumulative effect. Then, she set out her story, divided as well as she was able into the three sections as ordered by the Chairman. The format of the document is more akin to a witness statement than to a set of particulars of allegations. But as neither the Appellant nor her partner are lawyers, they are not to be criticised in this respect. The document provides a very detailed account of the Appellant's working relationship with Mr Groves.

At the resumed Directions Hearing on 1 April, the Chairman considered the document and observed that it set out her case in detail, conveniently broken into paragraphs covering the various sections of the case. He then went on as follows:

"2 I have to decide on the basis of the further and better particulars and representations from the parties, what orders for discovery should be made. I am of the view that in deciding that I have to consider which particulars, if proven, could amount to unlawful discrimination.

(a) Number 1 is a preamble and is relevant. The whole of paragraph 2, [We interpose to say that that covers complaints of inappropriate and lewd language] would be capable of amounting to unlawful discrimination if proved evidentially and if a tribunal was persuaded to draw certain inferences.

(b) As to paragraph 3, a great deal of this was irrelevant and could only be relevant to an allegation of constructive dismissal. There had been criticism of the applicant but the tribunal must confine itself to the issues raised in the allegation of unlawful discrimination and this is not a forum for the applicant to refute suggestions of inexperience or incompetence, which may or may not be true. I found that the whole of paragraph 4, [which related to the grievance procedure] if proved, would be capable of amounting to unlawful discrimination, on the basis that to fail to carry out an investigation of an allegation of discrimination, or to do so unfairly or incompetently, could amount to discrimination. It is to those issues which I confine the parties in relation to discovery and the contents of witness statements."

He removed from the document most of the allegations in paragraph 3. He then went on to say that he might, at the hearing, be persuaded to permit witnesses to give oral evidence whose statements had not been disclosed.

In this appeal the Appellant complains that her claim has been wrongly limited by this order so that she cannot present it all and do it justice.

Mr Hills, for the Respondents, submitted that the Chairman had power to do what he did. He was, in effect, exercising his power of case management. This, he submitted, was an exercise of the Chairman's discretion and we ought not to interfere, even though we would not have exercised our discretion in the same way.

We were concerned first to establish exactly what the Chairman had done. Does this order amount only to legitimate case management or does it cross the line into the striking out of part of the Appellant's claim? If it does amount to the striking out of a part of the claim, did the Chairman have the power to make that order?

To examine these contentions, we consider some of the issues raised by the Appellant, which had been disallowed as irrelevant by the Chairman, in order to see what effect his order has on the treatment of those issues. We propose to take only two examples:

(a) At paragraph 3.42 to 3.45, the Appellant complained of the Second Respondent's conduct of her staff appraisal. She said that the appraisal was not carried out according to the procedures accepted as proper by the First Respondents. The Chairman held that this allegation was irrelevant to her claim for sex discrimination. Under the Chairman's order, the Appellant cannot obtain discovery of documents in relation to her appraisal; nor will she permitted at the hearing to give evidence about it, or to refer to it in her witness statement. The effect is that that allegation is excluded from consideration as part of her case.

(b) There are allegations that the Second Respondent interfered with the running of the Appellant's department in a way in which he did not interfere with the management of other departments, all of which were headed by male Trainer/Supervisors. A number of examples are given:

(1) the Second Respondent reorganised the layout of the Appellant's training room during her absence: see paragraphs 3.21 to 3.24;

(2) the Second Respondent disciplined and demoted the Appellant's workpool supervisor who was, in effect, her right hand man, without consulting her;

(3) the Second Respondent took decisions on trainees within her department, either in her absence or without consulting her or contrary to her views.

The Chairman ruled that these allegations were irrelevant to an allegation of sex discrimination and could only be relevant to a claim for constructive dismissal. The effect of the order would be to prevent the Appellant from giving evidence on these issues, either orally or in her witness statement.

Mr Hills has referred us to a number of cases in which both the Court of Appeal and the Employment Appeal Tribunal have stressed the importance to Industrial Tribunal Chairmen of their powers to control proceedings. We shall cite only two examples. In Brooks v British Telecom Plc [1991] ICR 286 at page 312 H, Wood J, then President of the EAT said this:

"Every case must depend upon its own facts; industrial tribunals are in a position within broad margins to follow their own procedures. The problems of complexity and prolixity before industrial tribunals are best met by preliminary analysis of issues. It would seem to us wise in some cases to identify and narrow the issues at an early - perhaps a preliminary - stage, ... "

Also, in X v Y Limited [1998] ICR 43, at page 54 below C, Waite LJ said:

"This case provides a salutary example of the value of the rule that the Tribunals themselves are the best judges of the case management decisions which crop every day as they perform the function, an important but seldom an easy one, of trying to do justice with the maximum of flexibility and the minimum of formality to the problems that arise from the employment relationship and its termination. Decisions of the kind that the Chairman was required to make in this case frequently call for a balance to be struck between considerations of time, cost and convenience as well as fairness to the parties, and in the vast majority of cases can and should be left to the Tribunals to resolve for themselves without interruption from the appellate process."

Helpful although those authorities and others like them are, none of them raised directly the point which we must resolve here. Does a Chairman have the power to narrow the issues as this Chairman did under a general power to give directions? This is an important issue. We are entirely sympathetic and supportive of the needs of Chairmen to give directions for the efficient conduct of cases, keeping the parties within the proper bounds. But, in our view, care must be taken not to overstep the line between case management on the one hand and the striking out of part of a case, which can only be done according to the rules.

The relevant rules are set out in Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993. Rule 9 (1) provides a general power to regulate procedure at a hearing:

"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 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."

Rule 16 (1) provides:

"16 (1) A tribunal may at any time, on the application of a party or of its own motion, give directions on any matter arising in connection with the proceedings."

It was upon those two rules combined that Mr Hills sought to rely in support of his submission that the Chairman had done no more than manage this case under the powers with which he was provided.

Rule 13 is headed "Miscellaneous powers". Under Rule 13 (2) (d) it is provided that:

"13(2) A tribunal may -

(d) subject to paragraph (3), at any stage of the proceedings, order to be struck out or amended any originating application or notice of appearance, or anything in such application or notice of appearance, on the grounds that it is scandalous, frivolous or vexatious."

Paragraph 3 provides only for the procedure which must be carried out before such a power may be exercised.

Rule 7 is also relevant to our enquiry. We summarise it by saying that it provides the power for the Tribunal to conduct a pre-hearing review at which, if it appears to the Tribunal that the case (or part of the case) of a party has no reasonable prospect of success, the Tribunal may require the party to pay a deposit of an amount not exceeding £150 as a condition of being permitted to continue, either to take part in the proceedings or to continue to argue that part of his or her case.

Considering all those powers together, we are satisfied that a Tribunal has no power to strike out part of a claim under Rule 16, that is the general power to give directions. In our view, part of a claim may only be struck out under Rule 13 (2) (d). The use of Rule 7 may be an alternative approach available to a Chairman who wishes to curtail the scope of proceedings.

If an Industrial Tribunal Chairman is faced with allegations which are irrelevant to the claim, he/she may consider striking them out as frivolous under Rule 13(2) (d). However, before doing so he should give the party affected the opportunity to justify their inclusion. If he concludes they are clearly irrelevant he may strike them out, but he should make it plain that he is exercising his power to strike out and not merely exercising a general power to give directions.

We turn to consider what happened in this case. This Chairman did not say that he was striking out the allegations which he disallowed. He did not say that he made his ruling under Rule 13 (2) (d). However, he said that the allegations were irrelevant. If he was right, as a matter of law, that these allegations were irrelevant, we would not interfere with his decision, although we would say that he ought to have made it plain that he was exercising his power under Rule 13 (2) (d).

In our view the Chairman erred in law in holding many of these allegations to be irrelevant to a case of sex discrimination. We do not propose in the course of this judgment to deal with each allegation which he categorised as irrelevant. We deal only with the two already mentioned. The remaining allegations are of a similar nature to those which we will mention and our reasoning will, we believe, be sufficiently apparent.

We deal first with the appraisal. If it be right that the Appellant's appraisal was not carried out according to the First Respondent's procedures, that allegation may found a complaint that the Appellant has been treated differently from the way in which employees are normally treated. That finding, if made, will throw upon the First Respondent an obligation to explain why they treated the Appellant differently from the way in which they normally treat their employees. If the Tribunal were not satisfied by the explanation for the different treatment, it would be open to them to draw an inference of discrimination on the grounds of sex. Mr Hills accepted that that was so.

Second, we deal with the allegations of conduct which tended to undermine the Appellant's position as a manager in charge of a department. If the Appellant is able to show that the events which we described occurred in her case and did not happen to other managers, and she is able to show that she was the only female Trainer/Supervisor managing a department, this could clearly found a complaint of discrimination on the ground of sex.

In our view the Chairman was right when he said that allegations such as this are relevant to cases of constructive dismissal, but he was wrong when he said that they were not relevant to cases of sex discrimination. The same material may be relevant and often is relevant to both types of enquiry and we are satisfied that the examples that we have given are relevant to this complaint of sex discrimination. They were not raised only to refute the Respondents' allegations of inexperience and incompetence; they were part of the Appellant's case.

We have some sympathy with the error into which the Chairman fell. There had been many issues to discuss at the adjourned Directions Hearing and only a limited time available. The allegations in the further and better particulars were not presented in a form in which a lawyer would have presented them. It was only when we invited Mr Harland to explain how he put his case, in respect of each allegation, that its relevance became clear to us. In some cases, his attempt to explain relevance made him realise how peripheral or irrelevant an allegation was and he then withdrew it. The Chairman did not undertake that process, probably because there was insufficient time.

Our conclusion is that the Chairman erred in law in holding matters to be irrelevant to the case, which were not. We think it right to repeat the point made in argument, that although it is desirable that cases should be kept within proper bounds, this must not prevent a party from putting his or her full case, especially where the full case would, if successful, attract higher damages than only part of the case. There may be a temptation to invite a party to advance only the simple issues within a case, whereas the full case, although more complicated and therefore more time consuming would be stronger and sound more heavily in damages.

In the event therefore, we allow this appeal. We were asked by Mr Hills to consider remitting the case to the Industrial Tribunal, but we have decided not to do so. We have heard the arguments on the individual allegations in some detail. Moreover, we are concerned about permitting any further delay in the hearing of this application. This employment terminated in July 1997 and it seems unlikely to us, even if we deal with all matters today, that the case will be heard either until very late this year or early next year. We are reluctant to send this case back for further Interlocutory Hearings. We consider it appropriate to substitute our own judgment for that of the Industrial Tribunal.

The effect of our decision will be that the Chairman's direction made following the hearing on 1 April, but promulgated on 17 April, will be amended to include the following paragraphs: 3.1 - 3.12; 3.13 will not be included; 3.14 - 3.17 will be included; 3.18 and 3.19 will be excluded; 3.20 - 3.29 will be included; 3.33 -3.38 will be included; 3.40 was already allowed; 3.42 - 3.47 will be included; 3.49 and 3.50 were already allowed; from 3.51 - 3.63 will be included; the remainder, that is 3.64 - 3.71 were already allowed by the Chairman.

The effect of that order will be to permit the Appellant to give and call evidence on the issues covered in those paragraphs and to require the Respondents to provide discovery of documents relevant to those issues. If any problem arises in relation to the operation of that order for discovery the dispute is to be taken back to the Industrial Tribunal.

Finally, we were asked by the Appellant to direct that this matter should proceed before a different Chairman. After hearing Mr Hills on that issue, it is our view that, in the interests of justice, this Chairman should not be further involved.