United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For Pinco (Bradford) Ltd	TOM LINDEN (of Counsel) Messrs Eversheds Solicitors Cloth Hall Court Infirmary Street Leeds LS1 2JB
For Mrs Bayliss and Mrs McLoughlin	RACHEL CRASNOW (of Counsel) Messrs Zermansky & Partners Solicitors 10 Butts Court Leeds LS1 5JS


 


MR JUSTICE MORISON (PRESIDENT): This is a directions hearing, coupled with an appeal against the Registrar's Order of 9th January 1998. I can deal with the appeal shortly first.

In this case, there are two sets of proceedings before an Industrial Tribunal which have given rise to two sets of appeals. On 10th January and 10th March 1997, the first tribunal sat to hear an equal pay claim brought by Mrs Bayliss and Mrs McLoughlin in relation to their employment with Pinco (Bradford) Ltd, who manufacture pins. On 30th January 1997 both applicants were dismissed. On 17th March 1997 the first decision of the Industrial Tribunal was promulgated. On 28th April 1997 the employers put in their Notice of Appeal against that decision having lost on the equal pay issue.

There was then a three day hearing between 17th June and 27th August 1997 in relation to the second application brought by the two applicants for unfair dismissal and victimisation. The tribunal's written decision was promulgated on 29th September 1997. On 20th October 1997 the Employment Appeal Tribunal, at a preliminary hearing, allowed to proceed to a full hearing the employer's appeal against the first decision.

Having allowed the matter to proceed, it then became the duty of the respondents, that is the applicants, to put in their answer by 4th November 1997. On 5th November 1997 a Notice of Appeal was put in on behalf of the two applicants against the second decision, they having failed, essentially, in their case of victimisation, although one of them succeeded on a complaint of unfair dismissal.

On 27th November 1997, that is 23 days late, the applicants put in their respondents' answer to the first appeal. The employers' solicitors contended that as a result of the delay in putting in the respondents' answer, the respondents effectively should be denied the opportunity of contesting the first appeal. Representations were made on both sides to the Registrar. Who, on 9th January 1998 extended time for the service of the respondents' answer.

On 23rd January 1998, there was a preliminary hearing in relation to the second appeal which was also allowed to proceed to a full hearing.

It seems to me quite clear from the facts as I have set them out, that Messrs Eversheds who are representing the employers in this case, were perfectly well aware of the fact that the two applicants were joining issue with their former employers both in relation to equal pay matters and in relation to the way they alleged they had been treated by the employers when they were dismissed thereafter. Accordingly, it has not been suggested, nor could it have been, that in any way the employers have been prejudiced by the delay in putting in the respondents' answer. Accordingly, it is obvious that the Registrar's rejection of the submissions made on the employer's behalf, was correct. I regard the appeal against the Registrar's decision as being nothing more than a empty tactical manoeuvre. It is that sort of forensic conduct is neither welcome nor acceptable in the Employment Appeal Tribunal. I have no hesitation in saying that there was no merit in the appeal. There never was any merit in it. Although this is not to be treated as a licence for respondents to delay in putting in their answers, I am satisfied that the Registrar was entirely right to extend time in this case. The appeal, therefore, is dismissed.

I turn, therefore, to the question of directions, and that is more difficult.

In principle, it seems to me, desirable, if it can be conveniently done, that both appeals should be heard and determined together. That will avoid the need for the same Counsel having to open the appeal, then reply to it and then respond to the next appeal. There is no reason why both appeals cannot be heard together, and Counsel have very helpfully suggested that that could readily be done.

But in relation to the second appeal, one of the grounds of appeal is that the decision of the Industrial Tribunal rejecting the women's complaints, was perverse. In support of the contention that there was perversity, a detailed skeleton argument was presented to the Employment Appeal Tribunal on 23rd January 1998, and it identified in paragraph 24 precisely what evidence it was that was being sought. But it will be appreciated that that was simply a selection of the evidence which the two women wished to ask the Employment Appeal Tribunal to look at. If a mere selection is ordered in that way when there is a substantial attack on the reasonableness of the Industrial Tribunal's decision, then it would not be surprising if the employers were to contend by way of reply that we could not adjudicate on whether the decision was, generally speaking, perverse, having regard to the totality of the evidence, because we would not have available to us the totality of the evidence, and it might be that what was not in the Chairman's Notes was of pertinence. Accordingly, it seems to me, that this is a case where an order for partial Notes of Evidence is not at present required.

The appellants in the second appeal have arguments which can be addressed to the Employment Appeal Tribunal on the decision and its nature without the need for Notes of Evidence. If it became plain during the course of the appeal that the appeal could not be fairly disposed of without Notes of Evidence, then, of course, the matter could be adjourned so that the tribunal could provide all the Notes of Evidence. I, at the moment, cannot envisage circumstances in which merely part of the Notes will be of assistance to the fair determination of the appeal.

Accordingly, I am prepared to write to the Industrial Tribunal Chairman indicating that whilst the Notes of Evidence were arguably pertinent to the appeal, for present purposes we do not require him to provide them.

This will enable both appeals to come on together much more quickly than would otherwise be the case. Mr Linden on behalf of the employers, indicates that the finding of equal pay is one which causes the employers some considerable concern, and he would wish the appeal to come on in relation to the first decision as soon as practicable, and would ask that it should be advanced, and if needs be, should be heard separately from the second appeal, if the second appeal is going to be delayed while the Chairman provides his Notes of Evidence. I quite understand that submission, it seems to me to be desirable, in principle, to try and take the appeals together, and if, and only if, it becomes essential for the Notes of Evidence at the appeal hearing, will the matter have to be further considered.

The respondents' answer which was put in to the first appeal, indicated that there might be more to come. That is not satisfactory. In the sense that there should not be an open time limit for there more to come. Accordingly, I direct that if the respondents to the first appeal wishes to say more in the respondents' answer, then it must be done on or before 4 p.m. on Friday week. If we do not receive that amended answer by then, we shall not permit the answer to be amended at any later stage.

Furthermore, the Notice of Appeal in relation to the first appeal raises two matters which have not been responded to by the two employees. Those matters have been identified in Eversheds' letter of 5th November 1997, and they relate to paragraphs 6.3(4) and 6.4 of the Notice of Appeal. It seems to me that it would be desirable that the employees should state what their position is in relation to those matters, and I direct that they do so no later than 4 p.m. on Friday week.

So that the end result is that these appeals will be listed for an early hearing. They will be taken together. Notes of Evidence will be deferred at this time. The respondents, that is the employees, are to provide certain further information and to put in an amended answer, if that is what they wish to do, by Friday week at 4 p.m.

I am grateful to Counsel for their help. It seems to me probably desirable that this case should be heard as a matter of urgency because one of the possibilities must be that in either of the two appeals the Employment Appeal Tribunal may be persuaded that the matter will have to be reheard. I only say that because of the nature of the complaints made about the Industrial Tribunal decisions. I have entirely open mind as to what the outcome of the appeals will be.