United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS N BRAGANZA (of Counsel) Instructed By: Mr R Brennan Messrs Woolsey Morris & Kennedy Solicitors 100 Station Road Sidcup Kent DA15 7DT
For the Respondent	MR A T KEARNEY (Solicitor) John Molem & Co Plc Solicitors White Lion Court Swan Street Isleworth Middx TW7 6RN


 


JUDGE D M LEVY QC:

1. This is an appeal by Mrs Maureen Levy ("the Appellant") in proceedings which commenced in an Employment Tribunal as long ago as 31 August 1998. In those proceedings she complained that she had been unfairly dismissed and that there had been breaches of the provisions of the Equal Pay Act 1970 ("the 1970 Act") by her employer, Dudley Bower Facilities Management Ltd, ("the Respondent"). The unfair dismissal complaint was resolved in her favour. Ultimately the Equal Pay complaint was resolved against her. She appealed from the decision on her Equal Pay complaint, promulgated on 15 January 2001, by a Notice of Appeal received on 26 February 2001.
2. The matter came before a different panel of this Tribunal on 13 September 2001 in the judgment given by Judge Serota QC. The position was thus summarised on the Equal Pay complaint:

"4 In its original Summary Reasons, given on 30 June, the Employment Tribunal said the complaints under the Equal Pay Act were the subject of evidence on 19 April, and consideration in chambers on 28 June. The Employment Tribunal decided the complaints under the Equal Pay Act were not well-founded and should be dismissed. They then said that the matter would be explained further in detailed Reasons that would be supplied, but in fact, they were not supplied until 10 January of this year.

5 We should note, as well, that there was an Interlocutory Order made on 12 April 1999 in which directions were given in relation to the claims brought by Mrs Levy. A number of directions were given, but the Tribunal indicated [and the learned Judge quoted from paragraph 9] that:

'9. The hearing of the Applicant's unfair dismissal complaint is listed with the agreement of the parties for hearing before a full tribunal for two consecutive days commencing on Thursday 13 May 1999 and continuing on Friday 14 May 1999 … At the same time the tribunal will give further directions for hearing of the Applicant's equal pay claim'."

The judgment goes on:

"It would seem that no such directions, as envisaged, were ever given [that we have found to be correct]. When the matter was considered by the Employment Tribunal, there was no discussion or debate with the parties … in relation to an expert. [and the learned Judge quoted from paragraph 21 of the Extended Reasons] that:

'21 It is common ground that there was no relevant job evaluation study, and therefore no obstacle to the Applicant putting forward a complaint based on the alternative basis, that she was engaged on work which is of equal value to that of the comparators. The procedural rules applicable to this part of the case are set out in Schedule II to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993. Rule 8(A) sets out the procedure relating to an experts report. Neither party in this case has ever suggested that it was desirable that an expert should be instructed. The case has proceeded on the basis that it was a judgment for the Tribunal to make on the evidence put before it by the parties'.

6 The Tribunal, in paragraph 22, concluded that Mrs Levy had not satisfied the Tribunal that she was engaged on light work with her comparators. In relation to the complaint that she carried out work of equal value, the Tribunal said this:

'We have set out the evidence which has been put before us, including the very helpful analysis prepared by Mrs Levy. We do not consider it to be sufficient and satisfactory evidence to allow us to arrive at a conclusion at all, and therefore a conclusion in favour of Mrs Levy. We are unable to ascertain a sensible and cogent basis for making the comparison concerned. As we have already noted, the quality of the evidence before us is in many ways unsatisfactory, and tainted by the events which have occurred in relation to the dismissal of Mrs Levy by the Respondent'."

The Tribunal then say this:

"With the benefit of hindsight, it might have been helpful to have an expert's report. However, it would have been an obvious difficulty for such an expert that he or she would have been in no better position than the Tribunal in trying to distinguish fact from comment, and would have been dependent upon analysing work done by the employees concerned at a time when the comparison could no longer be made i.e Mrs Levy was no longer doing the job she did, and she had not been replaced by anybody else. Added to that has been the redundancy and reorganisation exercise to which we have referred in the extended reasons in the unfair dismissal complaint."

3. That, in summary, is the case which in greater detail Ms Braganza has put before us today, as she did before the earlier panel. She has referred us to the decision in Wood v William Ball [1999] ICR 277. In giving the judgment of this Tribunal the then President, Morison J, referred to the statute, which was there and here under discussion, as being very badly drafted and he said that that case had been a procedural mishap which meant that the matter had to be remitted for a further hearing. In the final paragraphs of his decision, he pointed out that the then editions of Harvey on Industrial and Employment Law might need some amendment. It does not appear to us that either the decision in this case or the volume of Harvey involved was considered by the Chairman or by the parties.
4. We cannot consider the parties at fault in this, particularly the Appellant who was representing herself. Just as in the Wood decision it is apparent, as the Chairman has all but said in his comments which he sent to us on this appeal, that there has quite clearly been a mishap. The decision in Ball sets out in some detail the statutes and what is required when an Employment Tribunal has to consider a complaint. If that decision and the elucidation it gave of the 1970 Act had been drawn to the attention of the Chairman, we are quite sure the proceedings would not have continued as they did. Mr Kearney, the Solicitor representing the Respondent on this appeal, has pointed out to proportionality and the difficulties of having an expert evidence after all this time, if the matter is remitted and of management changes, possibly of the Respondent and its ownership. Those difficulties may well exist, but the Appellant is nonetheless entitled to have her complaint under the 1970 Act properly investigated by an Employment Tribunal.
5. The position is there has been a procedural mishap, in our judgment, as identified at the preliminary hearing and as there was in the Ball case, and there has been no proper investigation of her complaint.
6. In these circumstances, we allow this appeal and order that the Applicant's complaint be re-heard before a differently constituted panel. We hope this hearing will take place expeditiously.