United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR PAUL EPSTEIN (of Counsel) Instructed by: Mr M Leach Messrs DLA Solicitors Bridgewater House 101 Barbirolli Square Manchester M2 3DL
For the Respondent	MS HARJIT GREWAL (of Counsel) Instructed by: Ms L Connerty Commission for Racial Equality Elliot House 10/12 Allington Street London SW1E 5EH


 


JUDGE PETER CLARK

1. This case is presently proceeding in the Manchester Employment Tribunal. By an Originating Application presented to the Employment Tribunal on 17 July 2000, the Applicant, Miss Morjaria, employed by the Respondent as a Senior Customer Services Assistant at their Blackburn branch, complained of both unlawful disability and racial discrimination and victimisation. The claims are resisted.
2. On 29 March 2001 a hearing took place of a preliminary issue, namely whether the Applicant was suffering from a disability for the purposes of Section 1 of the Disability Discrimination Act 1995. That Tribunal found that she was not. Against that decision she has appealed to the EAT.
3. On 30 March the parties were notified that the hearing of the race complaint would take place over seven days from 8 - 11 and 14 - 17 May 2001.
4. On 30 April a Chairman (Mrs Porter) ordered a postponement of the substantive hearing due to the Applicant's unavailability due to medical appointments on 14 May and the Respondent's view that the matter should be heard over seven consecutive working days.
5. The substantive hearing of the race complaint was refixed, by a Notice date 18 June, for 29 October to 6 November 2001.
6. On 24 July the Respondent's solicitor sought a postponement of that hearing pending the outcome of the Applicant's disability appeal. That application was listed for hearing before a chairman on 10 August by a Notice dated 25 July.
7. Further, on 14 June a chairman had made certain disclosure Orders, but excluding an Order for disclosure sought by the Applicant of the salary details of three of the Applicant's colleagues, used as comparators in the race complaint. That Order was also to be reconsidered on 10 August.
8. On 10 August a chairman, Mr M E Coles, heard the parties' oral representations on both those issues and declined:

(a) to postpone the race complaint hearing fixed for 29 October and following days, or

(b) to order disclosure of the salary details sought by the Applicant.

9. Those directions, with Extended Reasons, were promulgated on 28 August 2001. Against the refusal to postpone the Respondent now appeals by a Notice dated 29 August and against the Chairman's refusal to order disclosure of the salary details the Applicant cross-appeals. On 16 August the EAT notified the parties that the Applicant's disability appeal will be listed for a preliminary hearing on 14 January 2002.

Interlocutory appeals

10. It is common ground that the EAT cannot interfere with interlocutory Orders made by the Employment Tribunal unless an error of law is made out - see Medallion Holidays v Birch [1985] ICR 578. We do not have a general power of review.

Postponement

11. The Chairman's reasons for refusing to postpone the race complaint hearing fixed to commence on 29 October are set out in paragraph 5 of his Extended Reasons.

"5 The Chairman took the view that the issues in relation to discrimination on the grounds of race as opposed to disability, were significantly different. It was also unlikely that all of the witnesses necessary in relation to race discrimination complaint would be needed in relation to any possible subsequent hearing, as far as disability discrimination is concerned. Disruption of the Respondent's business could be minimised by staggering witnesses' attendance at the Tribunal. If the hearing of the Applicant's complaint of discrimination on the grounds of race is further delayed, this could cause injustice by witnesses' memories being taxed even further. It was not known how long the appeal would take to be heard, and there was always the possibility that it may not be pursued for one reason or another by the Applicant."

12. In pursuing the appeal against that part of the Chairman's Order, Mr Epstein acknowledges that he must show that the Chairman's Decision on the question of postponement is perverse, in the Wednesbury sense, that is to say no reasonable chairman properly directing himself could reach the conclusion that the hearing dates should remain.
13. He refers to a number of matters, all of which were canvassed before the Chairman below. First he takes issue with the Chairman's assessment that the issues in relation to race and disability discrimination in this case were significantly different. He refers in particular to that part of the Applicant's complaint which relates to her failure to achieve promotion, both in March 2000 and on earlier occasions, going back to the summer of 1997. He submits that there is a clear overlap of both the issues and the evidence necessary for determination of those issues in relation to the promotion complaints.
14. Ms Grewal submits that the Chairman's assessment was a permissible one, and that there are significant differences between the race and disability discrimination complaints, accepting that there is a degree of overlap in relation to the promotion question. She submits that stripped out, the pure disability discrimination issues could be disposed of in one to two days, in the event that the Applicant's appeal against the finding that she is not disabled were to succeed.
15. Secondly, Mr Epstein submits that having prepared composite witness statements for some fourteen witnesses to deal both with race and disability discrimination complaints, the Respondent will be put to considerable cost and inconvenience in disentangling those parts of the witness statements which deal with the one complaint from those dealing with the other. As to that, it seems to us that in any event, even if these complaints were permitted to be heard and were heard together, it would be necessary for the Employment Tribunal to separate out the evidence relating to the two complaints. We cannot see that it will cause great difficulty before the race hearing, presently fixed for 29 October, for the Respondent to identify which parts of the witness statements relate to the race complaint only.
16. Thirdly, Mr Epstein, on behalf of the Respondent, fears that there will be inconsistent findings of fact between the Tribunal hearing the race complaint and any subsequent tribunal which hears the disability complaint if the disability appeal succeeds. As to that, we think it probable that the same panel would be asked to hear the subsequent disability complaint but that in any event, insofar as material findings of fact are found in the race complaint, then an issue estoppel will arise, and those facts will not be disturbed at any subsequent disability hearing.
17. Fourthly, he refers to the earlier postponement of the substantive hearing. As to that it seems to us that no fault can be attached to either party for that earlier postponement.
18. Finally, he refers to the additional cost to the Respondent, and indeed, to the Applicant's side, if a separate disability discrimination hearing is to be held. Whilst that is plainly a material factor, it is one which the Chairman had very much in mind; see paragraph 3 of his Reasons.
19. Having had the argument below rehearsed again before us, we remind ourselves that our task in not to decide the matter de novo, but to determine whether or not it can be said that the Chairman's conclusion in these circumstances is one that can properly be characterised as perverse. We have no hesitation in saying that it cannot, and accordingly, the appeal fails.

Disclosure

20. It is important to bear in mind, as Mr Epstein points out, that the original application for the disclosure was dismissed by a Chairman on 14 June, that Chairman being of the opinion that the salary details were not necessary in this case. By that we take it the Chairman was indicating the view that such disclosure was not necessary for the fair disposal of the proceedings.
21. In advancing the cross appeal, Ms Grewal contends that the Chairman, Mr Cole's reasoning at paragraph 9 of his Extended Reasons, discloses a failure to comply with guiding legal principles, a principle which appears in the judgment of Mr Justice Wood in Adams v Raynor and West Sussex Council [1990] IRLR 215. Paragraph 9 of the Reasons reads:

"Since however, the Chairman felt that actual salaries of the individuals so identified were not of vital significance, and that the level of remunerational status of the persons identified could be dealt with statements from the respondent's witnesses, the further application on behalf of the applicant for such details was refused."

22. Mr Epstein points out that the cross-appeal as formulated in the answer to his appeal relies only on the perversity ground, so far as any permissible argument on the law is concerned. Even if we were to permit Ms Grewal to advance a different argument, that is that the Chairman had failed to take into account the question as to whether such disclosure was necessary for the fair disposal of the proceedings, we accept Mr Epstein's submission that that Order should be read in conjunction with the earlier Order of 14 June, which Mr Coles was reconsidering, and we think it implicit that he too concluded that such disclosure was not necessary for the fair disposal of proceedings.
23. As to the specific reasons which he gives in paragraph 9, looking at the real issue to which these documents may go, that is whether the allocation of certain duties to the three comparators and not to the Applicant constituted a difference in treatment on racial grounds, we accept that the level of salaries paid to those individuals is not central to that issue. There does appear to be a factual issue on the correspondence as to whether or not one or all three of those comparators were paid more than that Applicant, but at present we think it was permissible for the Chairman to conclude that that issue did not require disclosure at this stage.
24. We bear in mind that disclosure is a continuing process. We think that the Chairman's conclusion on the material before him was a permissible one. If it should transpire at the full hearing that such disclosure is necessary in the light of the way in which the case is developed, then an application can be made, and an Order made during the course of the hearing without, it seems to us, any real disruption to the preparation and progress of the case.
25. In these circumstances we are not persuaded that any error of law is made out in relation to the refusal to order disclosure and consequently, the cross appeal also fails. It follows that the appeal and cross appeal are dismissed.