United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS R KARAVADRA (Representative) Harehills and Chapeltown Law Centre 263 Roundhay Road Leeds LS8 4HS
For the Respondents	NO APPEARANCE BY OR REPRESENTATION ON BEHALF OF THE FIRST AND SECOND RESPONDENTS


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal against the refusal by an Industrial Tribunal Chairman to order further and better particulars of the Respondents' answers to the Appellant's IT1.

The position is this. Mrs Chahal was employed at Proctor & Gamble Products Supply UK Ltd premises for a short period of time while she was pregnant. The Employment Agency which procured that position, Meridian Business Support Plc are the First Respondents. Proctor and Gamble are the Second Respondents.

The Applicant says that, after being at the premises for a very short time she was dismissed, and that she was dismissed by reason of her pregnancy. She commenced proceedings by an Originating Application, which fully particularises the facts on which she relies, in support of her complaints of sex discrimination and unfair dismissal.

The Agency put in a Notice of Appearance and said this:

"1. It is denied that the First Respondent was dismissed unfairly .... as is alleged or at all [I think, by that, they must mean it is denied that the First Respondent dismissed the Applicant unfairly, as is alleged or at all]. Further and in the alternative it is denied that the First Respondent has discriminated against the Applicant on the grounds of her sex as is alleged or at all.

2. In the above premises it is denied that the First Respondents are liable to the Applicant as alleged or at all following the termination of the Applicant's contract for services."

And that is signed by an organisation who are, presumably, Solicitors.

The Notice of Appearance on behalf of Proctor & Gamble reads:

"The Respondent denies that the Applicant was discriminated against on the grounds of sex contrary to Section 9 of the Sex Discrimination Act 1975 as alleged or at all."

And under the heading "Was the Applicant dismissed?" and "Reason for dismissal" they have not ticked either of the "yes" or "no" boxes, but have said the reason for dismissal was that the Applicant was an agency worker whose services were not required.

A two-day hearing for this case was then fixed by the Industrial Tribunal to take place on 12 and 13 June. A Sex Discrimination Act Questionnaire has been served and I have been informed by the Solicitor, on behalf of the Appellant, that there has been no response to that questionnaire.

Accordingly, letters were sent to the Industrial Tribunal asking them to order the Respondents to give particulars of the facts and matters on which they were relying, in support of their general denial.

The request for particulars was refused on the grounds that the making of the order was not necessary for the proper determination of the issues in this case, and that the Applicant's representative appears not to understand where the burden of proof lies in this case.

The Applicant's representatives made a further request, inviting the Tribunal to reconsider its position in a full letter, which sets out in cogent form, precisely why it would be unfair for the hearing to come on on 12 and 13 June, without proper particulars having first been provided.

The response to that further letter was that a review would be inappropriate because nothing had changed since the application was made and it was said that the proper course was to appeal against the refusal to the Employment Appeal Tribunal, "if that is still considered necessary".

What then happened is that a Notice of Appeal was lodged and when the Industrial Tribunal were informed of it, they vacated the two-days which had been set aside. It goes without saying that the Employment Appeal Tribunal will be very slow, in the ordinary course of events, to interfere with a decision of an interlocutory nature of an Industrial Tribunal, particularly one of this sort. They are the masters, in general terms, of their own procedure and the judgment as to whether further and better particulars should be ordered, is a matter for the exercise by them of their own discretion.

It follows that there are just limited circumstances in which we can intervene. That said, in this case it appears to us that the learned Chairman has plainly erred in law and arrived at a conclusion which is wholly unreasonable.

The Respondents have decided, for their own reasons, to play their cards close to their chest. They have filed what only can be described as bare general denial in their Notices of Appearance. Industrial Tribunals should, as a matter of course, in our view, never permit such a Notice of Appearance, but should always require a Respondent to provide a responsive document in answer to a complaint.

It would be manifestly unfair for the Applicant to be asked to attend a hearing, on what are serious complaints, without having any idea at all as to the nature of the evidence and case which the Respondents may advance.

Furthermore, by putting in a bare denial the Respondents will have a free hand to say whatever it is that they think they wish to say, without being faced with a contention that that was a matter on which they were not relying in their Notices of Appearance.

There is, in our view, need in circumstances such as these, for the parties to be fairly precise as to what it is they are going to be saying, and that, in general terms, they should be tied to what they have said in their formal documents.

In these circumstances, we have no hesitation in allowing this appeal. We order the Respondents in this case to provide the particulars, which are contained in the written requests dated 28 and 29 April 1998, against the Second and First Respondents respectively, and we further direct that unless those particulars are provided, in satisfactory form, within 14 days of today's date, the Respondents will be debarred from defending.

We are further of the view that, after the particulars have been provided, if they have been, it would be appropriate before the case is re-listed for hearing, that a directions hearing is convened, at which the Industrial Tribunal can determine whether discovery orders are appropriate and, if so, in what form; whether any further particulars are then required and whether it may not be appropriate for the parties to exchange witness statements of any witness that they propose to call to give evidence at any substantive hearing.

On that occasion the Industrial Tribunal will be in a better position to determine how long the case is due to last. It seems to us that they had no basis for their original time estimate of two days, bearing in mind the non-responsive Notices of Appearance which have been filed in this case.

The Respondents did not appear on this appeal, as was their right.

Accordingly, the appeal is allowed in those terms.