United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR GRIFFITH Free Representation Unit
For the Respondents	MISS R UNDERWOOD (Solicitor) Messrs Fox Williams Solicitors Citygate House 39-45 Finsbury Square London EC2A 1UU


 


MR JUSTICE CHARLES: This is an appeal against a decision of an Employment Tribunal through the Chairman sitting alone at London (North). The decision is an Interlocutory Decision concerning Discovery and the reasons for the decision appear in a letter signed on behalf of the Regional Secretary of Tribunals dated 7 December 1999 ("the Decision Letter").

1. The hearing took place on 26 November 1999. The issue of Discovery had been considered earlier by the Chairman at a Hearing for Directions that was held on 9 August 1999. A letter dated 18 August 1999 ("the August Letter") confirms the directions given on that occasion. The issue of Discovery is flagged up in paragraph 7 of the August Letter.
2. The hearing on 26 November 1999, which is the subject matter of this appeal, related to two letters from the Appellant seeking Discovery. These letters were dated 1 and 5 October 1999 and they are referred to in the Decision Letter.
3. We have only seen the first IT1 asserting sex discrimination and constructive dismissal, but have been told by the parties today, who were both represented, that the factual description in the August Letter of the other IT1 is accurate and the claim in that IT1 and the first IT1 are all based on the same set of alleged incidents. The second IT1, as we understand it, makes a claim of race discrimination.
4. The grounds in the first IT1 are hand-written and then continue in a typed-up document. The grounds of resistance thereto prepared by the Respondent Company are fairly detailed and they reflect and dispute the allegations contained in the IT1. These two documents which can be described as "Pleadings" show that there is a substantial dispute of fact between the parties. We do not propose to set out the detail of the allegations, denials and counter-allegations in those two documents.
5. The relevant rule for ordering Discovery is Rule 4 (1) (b) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993, Schedule 1. That gives a discretion to the Employment Tribunal to order Discovery. To succeed on appeal against an exercise of such discretion the Appellant has to show that the Chairman exercised his discretion on an incorrect basis in law, or that his decision is perverse. The latter ground is always a difficult one to establish and this is particularly so in respect of an Interlocutory Hearing at which a Chairman has exercised a discretion relating to the management of a case.
6. Before the Chairman, as we understand it, the Appellant was not represented. Today she has been represented and should be grateful to Mr Griffith for the way in which he has put her case on her behalf. We are also grateful for the assistance of Miss Underwood who has appeared today representing the Respondent Company. It is, I think, fair to say that the exchanges that took place during the appeal hearing advanced the case in respect of the identification of issues further than it had been advanced before the Chairman and resulted effectively (and in our judgment correctly) in common (or undisputed) ground being reached as to further discovery which is reflected in our order. That being so, it is unnecessary for us to examine the exercise of the Chairman's discretion in any detail, as to the three matters which formed the subject matter of the appeal as advanced before us..
7. Briefly, the first matter concerned the request by the Appellant for documents concerning the stock take. During argument it was apparent that the nature of the Appellant's case, as put to us, was different to the way in which it had been put to the Chairman of the Tribunal, or at least it was understood to be different by the representative of the Company. This had the consequence that the Respondent Company, in our judgment properly, did not resist Discovery of material relating to the stock take and the ambit of that material is contained in paragraphs 1 and 2 of the Order which has been prepared in draft, is before me at the time of giving this judgment and which, with the alterations identified during argument, will be the Order made by this Tribunal.
8. The second head of appeal related to information as to salary, job description and other matters concerning persons attending the same Assistant Manager's course as that attended by the Appellant from March 1999. Again, during the course of submission before us it became apparent that, to some extent, the parties had been at cross purposes before the Chairman and the Discovery which we considered to be appropriate and which the Respondent Company agreed to provide, is reflected in paragraphs 3 and 4 of the draft Order and thus, with the alterations identified during argument, the Order that we propose to make.
9. The third head of appeal relating to Discovery was dealt with in the Appellant's Notice of Appeal as documentation sought in respect of her claim under the Equal Pay Act. The Chairman dealt with this on the basis that no such claim was being made and also, as we understand it, on the basis that this request for Discovery was far reaching than subparagraphs (i) and (j) of the 1st October letter indicate.
10. So far as a claim under the Equal Pay Act is concerned, we agree with the Chairman that on the face of the IT1 we have seen no such claim is made. Further I do not read the letter of 18 August in our bundle as accepting that such a claim is being made.
11. The position, as it seems to me, is that if the Appellant wishes to make such a claim it is for her to make it clearly and to either do so by way of a clear amendment, or the issue of a new claim. In both circumstances she will, of course, have to address the relevant time limits. (I add that in doing so she can (if she is so advised) raise the point Mr Griffith made after the adjournment of the hearing before this Tribunal and thus after the two members of this Tribunal had left and I was concerned with the terms of the order, that it was recognised, or accepted, or asserted at the August Directions Hearing that the Appellant was making a claim under the Equal Pay Act).
12. In connection with the Discovery sought on this third head of appeal we invited Mr Griffith on behalf of the Appellant to identify through Further and Better Particulars, the relevance of the Company pay structure (particular in respect of the payment of increments) and the increments which the Appellant alleges are relevant. After the adjournment of the hearing Mr Griffith provided a hand-written document entitled "Particulars of claim regarding breach of pay procedure". That is the document referred to in paragraph 5 of the draft Order before me and thus, with the alterations identified during argument, the Order we will make.
13. The Order for Discovery which we consider to be appropriate and which the Respondent Company agree to provide, is identified in paragraph 6 of the order we will make. Paragraph 7 of that order will state, for the avoidance of doubt, what we understand to be the position, namely that it is within the discretion of the Employment Tribunal, once the issues have been further identified, to deal with any further application for Discovery pursuant to Rule 4.
14. Finally, we have directed that there should be an exchange of Skeleton Arguments and have identified matters which those Skeleton Arguments must contain. Naturally they can contain additional matters if the parties' advisers consider that to be appropriate.
15. So far as timing is concerned, with the exception of the Order as to Skeleton Arguments, we direct that, if practical, the Discovery and Particulars be provided by 24 December 1999 and, in any event, by 4 January 2000. The Skeleton Arguments are to be exchanged on 4 January 2000 and, if possible, copies are to be sent to the Employment Tribunal so that they will be available to the Employment Tribunal when they convene to hear this case on 5 January 2000.
16. I repeat my thanks to the representatives of both the parties who have informed us that they will be present at the hearing before the Employment Tribunal. Mr Griffith's understanding is that he will be representing the Appellant. Miss Underwood informed us that she will be there and will be instructing Counsel. We hope that the exchanges they have had, amongst themselves and to us, have helped to identify the issues.
17. We would recommend the parties to have regard to the guidance given by the Court of Appeal in cases such as Cast v Croydon College and also the guidance given by this Tribunal in, I think, Tchoula v Netto Food Stores Ltd of the advantages of Directions Hearings and by extension and analogy in this case the advantages of identifying at the beginning of the hearing, through the Skeleton Arguments, the issues that the Employment Tribunal are going to be invited to decide.
18. In our view it is important that an Employment Tribunal dealing with a case alleging sex and race discrimination is, so far as practical, hearing the evidence against an agreed background of the relevant legal principles and in the knowledge of the case that the Applicant seeks to make and thus, for example, the primary facts that the Applicant seeks to prove, the comparisons that the Applicant seeks to make, the less favourable treatment alleged and the basis upon which the Applicant urges a Tribunal to infer discrimination from the primary facts the Applicant is alleging. On the other side of the equation, it is important for the Tribunal to know at the outset what the employer's case is and thus the reasons being advanced by the employer for the actions taken by the employer in respect of the matters under investigation and thus the matters being alleged by the Applicant.
19. We hope that the Skeleton Arguments will be of assistance to the Employment Tribunal in these respects.
20. I will make an Order in the terms of the draft Order with the additions made during the course of argument.