United Kingdom Employment Appeal Tribunal

JUDGE PETER CLARK:

1. The only live issue left in these appeals and cross-appeals concerns the question of costs. In order to rule on that application, made by Miss Bothroyd on behalf of the Applicant, Miss Sandhu, we should set out some of the background of this case. There are before us interlocutory appeals and cross-appeals in this matter currently proceeding in what was the London North Employment Tribunal, now London Central, which were adjourned by a division presided over by Mr Justice Charles, sitting on the 6 October 2000, in unusual circumstances. By way of background, the Applicant is a black Asian woman who commenced employment in the BBC World Service as a Broadcast journalist in 1989. By an originating application presented to the Employment Tribunal on the 20 September 1999, she complained that she had been persistently passed over for promotion on grounds of her race and/or sex.
2. For the purposes of these appeals and cross-appeals, the issues in the case were identified by a Chairman, Mrs Mason following a directions hearing held on the 7 September 2000. At paragraphs 9 - 12 of the written reasons promulgated by that Chairman on the 11 September, (the Mason reasons). Those issues include:

1 whether the BBC directly discriminated against the Applicant on grounds of her race and/or sex in (a) failing to promote her on occasions in 1991, 1994, 1995 and 1999 when she applied for promotion and (b) in requiring here to attend a selection board and be subjected to the indirectly discriminatory input of the interviewers whereas others of different race and/or sex were selected for promotion without interview.

2. Indirect discrimination, in that criteria for selection for promotion themselves represented a requirement or condition with which a considerably smaller proportion of women / persons of the Applicant's ethnic origin could comply and/or involved a vague, subjective unadvertised promotion procedure which did not provide any adequate mechanisms to prevent subconscious bias unrelated to the merits of candidates or prospective candidates for the post see Watches of Switzerland and Swell (1983) IRLR 14.

There were then further issues identified for the purpose of the indirect discrimination claims as to the appropriate pool for comparison, the relevant proportions, whether the requirement or condition if any was justified and whether the Applicant could comply with the alleged requirement or condition.

3. Two principle issues emerged between the parties on the question of disclosure. Both were ventilated at a directions hearing held before a Chairman, Mr Flint, on 27 April 2000. Having received the parties' submissions on those issues, Mr Flint reserved the matter for further consideration. On 12 May 2000 he promulgated what is said to be a decision with Extended Reasons but may best be described as a ruling. The "decision" for discovery is said to be as contained in the decision. Perusal of the Chairman's reasons reveals that the took the view;

1. That the BBC ought to disclose the personnel files of all applicants for posts grade 9 for which the Applicant applied, whether they faced formal promotion panels or not (the personnel files issue).

2 That the BBC ought not to be required to disclose documents passing between it and the Commission for Racial Equality (CRE) in the course of an informal CRE investigation of the BBC's World Services practices for the period, we see from the papers, between December 1998 and March 2000 (the CRE issue).

4. We have described Mr Flint's conclusions on those issues as a ruling because he declined to make formal orders for discovery on the first issue (Reasons paragraph 8); instead indicating that if either party wished to have a formal order they should apply to the Employment Tribunal for a formal order.
5. Against those rulings, the BBC appealed on the personnel files issue and the Applicant cross-appealed on the CRE issue (EAT758/00). Neither party was content with that state of affairs procedurally and the question of disclosure was raised again before Mrs Mason on 7 September. She dealt with the matter at paragraph 7 of her reasons in this way

"Mr Flint's decision 27 April 2000, it appears to me that without agreement between the parties I ought not to revisit this decisions as arrived at after hearing lengthy submissions from both sides. The matter was clearly fully argued for that reason we agreed that I should make the "formal order" for discovery envisaged by Mr Flint to reflect his decision that the Respondent that is the BBC should then re-lodge its appeal and may be withdraw the earlier one but in any event, ask the Employment Appeal Tribunal to hear the appeal on the day already fixed. I recognise that this is not an ideal solution but it appears to be the only practicable one open to me in view of what has gone before."

The Order made by Mrs Mason was that the BBC shall give discovery of documents as directed by the Chairman Mr Flint on 27 April 2000. We take that to mean that Mrs Mason ordered the documents identified by Mr Flint on the personnel files issue but not on CRE issue. Against Mrs Mason's discovery order the BBC appealed and the Applicant cross-appealed as before (EAT1234/00).

6. The 6 October 2000 Employment Appeal Tribunal Hearing

We have earlier observed that the conjoined appeals and cross-appeals came on for hearing but were adjourned by the Division presided over by Mr Justice Charles which included Miss Switzer who sits on this Division today. It seems from reading the judgment delivered by Mr Justice Charles that the Court took a proactive case management approach, particularly important for a first instance judge in the post Woolf world. In the course of that judgment Mr Justice Charles indicated that he thought it sensible to consign the reasons expressed by Mr Flint to procedural history (Transcript, paragraph 1). Instead it was proposed that the parties who were thought to have taken an unnecessarily confrontational stance in correspondence (paragraph 12) should attempt to agree the issues relating to discovery and a framework for discovery, starting from a neutral base in the absence of any existing orders by an Employment Tribunal relating to discovery (paragraph 18).

7. An indication was given that if such agreement could be reached within 14 days the BBC appeal would be allowed on the personnel file issue and the Applicant's cross-appeal on the CRE issue dismissed, making it clear that no indication was thereby given as to the merits of the appeals and cross-appeals (paragraph 18). In the absence of agreement it was anticipated by the Court that this appeal Tribunal could at the adjourned hearing, either of its own motion or at the invitation of the parties, feel able to decide the substantive issues as to discovery that then existed or had in the meantime been identified by the parties, rather than confining themselves to the question whether or not Mr Flint or Mrs Mason erred in law sometime ago in respect of a different background. That would be a matter for the new Tribunal and the parties, accepting that the initial decision-maker on procedural issues such as discovery is the Employment Tribunal (paragraph 20).
8. The exercise initiated on that occasion proved to be a triumph of hope over experience. No agreement has been reached between the parties. Consequently, 4 months later the present appeals and cross-appeals return to us for determination.
9. Interlocutory Appeals

Appeals to the Employment Appeal Tribunal are on a point of law only. Section 21(1) Employment Tribunals Act 1996. That applies equally to substantive and interlocutory appeals. At one time it was thought that the EAT jurisdiction extended to considering interlocutory applications such as these de novo. See British Library v Palyza [1984] IRLR 306. That view was not followed by Waite in Medallion Holidays v Birch [1985] ICR 578, where it was held that for an interlocutory appeal to succeed, an error of law must first be identified. The Medallion approached was approved by the Court of Appeal in Ashmore v British Coal Corporation [1990] IRLR 283, and in Adams and Rayner v West Sussex County Council [1990] IRLR 215, a discovery case, where Mr Wood identified three issues which fell to be considered on hearing an interlocutory appeal. They are:

a) Whether the Order was made within the powers given to the Tribunal.

b) Whether the discretion was being exercised within guiding legal principles.

c) Whether the exercise of the discretion could attacked as Wednesbury unreasonable.

10. Reverting to the approach indicating by Mr Justice Charles on 6 October 2000, insofar as this presently constituted Division was invited to disregard the earlier Flint ruling and Mason order and to approach the question of discovery de novo, in the light of the current state of play as between the parties, we indicated at the outset of this hearing that we decline to do so. We indicated to counsel without dissent the we would determine the appeals and cross-appeals according to law, following the approach sign posted in Medallion, Ashmore and Adams and Raynor.
11. In those circumstances, during the course of submissions, first Miss Bothroyd indicated that she would not pursue her cross-appeal in the event that the BBC's appeal failed and at a later stage Mr Soor, we think realistically, indicated that the BBC wished to withdraw their appeals. As a result, counsel produced an agreed form of order dismissing the appeals and cross-appeals in both these appeals on withdrawal by the respective parties.
12. That left the question of costs. Miss Bothroyd submitted that this appeal was unnecessary from the outset and that the BBC ought to be required to pay the Applicant's costs in the appeal under the provisions of Rule 34(1) of the EAT Rules 1993. That application has been vigorously opposed by Mr Soor. Having heard the respective submissions our conclusion is that neither appeal nor cross-appeal enjoyed any real prospect of success. Approached in the way in which we have indicated we would have approached the matter had the appeals been pursued. We think that the majority of the work in the appeals and the driving force lay in the BBC's appeal as oppose to the Applicant's cross-appeal. Our impression being that that was something of an add-on if the appeal of the BBC were to be pursued. In the circumstances, we think that the bulk of the costs incurred in these appeals ought to be paid by the BBC. But we bear in mind our powers under Rule 34(1), which to some extent anticipated the wider discretion afforded to the Civil Courts in awarding costs under the CPR. The rule provides that this Tribunal may order the party at fault to pay the whole or such part as it thinks fit of the costs or expenses incurred by the other party in connection with the appeal.
13. Doing the best we can, we have concluded that the just course in this case is to order the BBC to pay 75% of the costs incurred by the Applicant in these appeal proceedings, making no distinction for this purpose between those strictly attributable to the appeal and those strictly attributable to the cross-appeal. Those cost to be agreed, failing which there will be an order for a detailed assessment.