United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0286/11/SM

UKEAT/0288/11/SM

 

 

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX

 

 

  At the Tribunal

  On 16 & 17 November 2011

Judgment handed down on 2 May 2012

 

 

Before

THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)

MRS D M PALMER

MR P SMITH

 

MS M BRENNAN & OTHERS APPELLANTS

 

 

1) SUNDERLAND CITY COUNCIL

2) GMB

2) UNISON   RESPONDENTS

 

 

 

 

 

SUNDERLAND CITY COUNCIL APPELLANT

 

 

1) MS M BRENNAN & OTHERS

2) GMB

3) UNISON RESPONDENTS

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Claimants	MR PHILIP ENGELMAN (of Counsel) Instructed by: Stefan Cross Solicitors Buddle House Buddle Road Newcastle-upon-Tyne NE4 8AW
For the Council	MR DAVID READE (One of Her Majesty’s Counsel) MR SEAMUS SWEENEY (of Counsel) Instructed by: Corporate Services Directorate Sunderland City Council PO Box 100 Civic Centre Sunderland SR2 7DN
For the GMB	MR GAVIN MILLAR (One of Her Majesty’s Counsel) MS MELANIE TETHER Instructed by: Reynolds Porter Chamberlain Tower Bridge House St Katharine’s Way London E1W 1AA
For UNISON	MR ANTONY WHITE (One of Her Majesty’s Counsel) MR NIRAN DE SILVA (of Counsel) Instructed by: Berrymans Lace Mawer Salisbury House London Wall London EC2M 5QN

 

 

SUMMARY

 

PRACTICE AND PROCEDURE – Contribution

 

 

PRACTICE AND PROCEDURE – Disclosure

 

 

(1) An employment tribunal has no jurisdiction to determine claims for contribution under the Civil Liability (Contribution) Act 1978 between persons jointly or concurrently liable for damage caused by an act of unlawful discrimination.  Nor in any event does the 1978 Act create such a right as between such persons.

 

(2) The employment tribunal had been entitled to order the Claimants to disclose the settlement agreement between them and one set of respondents as being relevant to the issue between them and the remaining respondents, inasmuch as any sums recoverable under the settlement from the former would fall to be taken into account if they were to succeed and were entitled to compensation against the latter.

 

THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)

 

INTRODUCTION

 

1.            These two appeals arise in the context of an equal pay multiple being brought in the Newcastle-upon-Tyne Employment Tribunal against Sunderland City Council (“the Council”).  The proceedings have the distinction of having generated four previous appeals.  In the decision of this Tribunal on the most recent of those appeals, heard with an appeal involving different parties but overlapping issues (Bury Metropolitan Borough Council v Hamilton), we set out the background history and the broad nature of the claims, and we will not repeat that account here: reference can be made to paras. 1-6 of the report at [2011] ICR 655 (pp. 658-660).  Most, though not all, of the Claimants are represented by Stefan Cross solicitors.  Since the remaining Claimants are not parties to the appeals I will refer to the claimants so represented as “the Claimants” tout court. 

 

2.            Both appeals arise out of the feature – unusual, though not unique – that the Claimants initially brought claims not only against the Council but against two of the trade unions recognised by it, the GMB and UNISON (“the Unions”).  The claims in question relate to the period following the conclusion of the agreement between the Council and the Unions bringing single status into effect (“the Agreement”). The aspects of the case relevant for present purposes can be summarised  as follows:

 

(1) The starting-point is that certain of the terms of the Agreement are alleged to have been sexually discriminatory.  The terms in question are those designed to cushion the impact on employees whose entitlement to bonus had been removed in consequence of the introduction of single status - specifically those providing for (in summary) (a) protected pay over a further finite period; (b) entitlement to “non-competitive interviews” in the event of a promotion opportunity; and (c) a commitment on the part of the Council to “enrich” so far as possible the jobs of those so affected. 

 

(2) As against the Council the Claimants claimed the benefit of those terms under the Equal Pay Act 1970; but in the alternative they alleged that their inclusion was unlawful under section 6 of the Sex Discrimination Act 1975, which is the familiar section outlawing (in effect) any discriminatory detriment towards an employee: we need not reproduce it here.  As against the Unions their case was that they had unlawfully discriminated against them by entering into an agreement containing those terms (and/or by treating themselves as bound by it).  They relied on section 12 (3) (c) of the 1975 Act, which provides:

 

“It is unlawful for an organisation to which this section applies [which includes a trade union], in the case of a woman who is a member of the organisation, to discriminate against her … by subjecting her to any other detriment.”

 

(3) Separately from the claims under section 12, the Claimants also sought a declaration that the terms in question were void pursuant to section 77 of the 1975 Act: see para. 30 of the Amended Particulars of Claim.  Section 77 (1) provides:

 

“A term of a contract is void where—

(a) its inclusion renders the making of the contract unlawful by virtue of this Act, or

(b) it is included in furtherance of an act rendered unlawful by this Act, or

(c) it provides for the doing of an act which would be rendered unlawful by this Act.”

 

(4) The employment tribunal has jurisdiction to entertain such a claim pursuant to section 6 (4A) of the Sex Discrimination Act 1986.[1]  Rule 52 of the Employment Tribunal Rules of Procedure provides, in short, that in the case of a claim under section 6 (4A) of the 1986 Act all parties to the agreement are to be treated as respondents.  Specifically, it provides (so far as relevant):

 

“Where a claim includes a complaint under section 6 (4A) of the Sex Discrimination Act 1986 relating to a term of a collective agreement, the following persons, whether or not identified in the claim, shall be regarded as the persons against whom a remedy is claimed and shall be treated as respondents for the purposes of these rules, that is to say—

 

(a)     the claimant's employer (or prospective employer); and

 

(b)     every … organisation of workers … which, if the terms were to be varied voluntarily, would be likely, in the opinion of an Employment Judge, to negotiate the variation; …”

 

Accordingly the Unions were necessary parties to the claim under section 77.

 

 (5) Against that background, the relevant parts of the prayer for relief at para. 39 of the Amended Particulars of Claim are as follows:

 

“(ii) In relation to the above identified clauses in the Collective Agreement [i.e. those referred to at (1) above], either (a) a declaration that the claimants’ equality clause shall be modified/supplemented so as to bring them within the ambit of the above identified clauses, (b) alternatively, a declaration of nullity in respect of those clauses;

(iii) Damages for the breach of section 12 (3) (c) SDA 1975 and sections 6 and 77 including damages for injury to feelings; …”

 

Thus the claim for “damages” was essentially in respect of the same damage, but framed under section 6 against the Council and under section 12 against the Unions.[2] 

 

3.            In or about September 2009 the Unions entered into a settlement agreement with the Claimants.  The detailed terms are not known, but we are told that no relief is any longer sought against either except for the declaration under head (ii) of para. 39 of the Amended Particulars of Claim: see further paragraph 28 below.

 

4.            On 3 February 2010 the Council wrote to the solicitors acting for the Unions.  The meat of the letter in both cases reads as follows:

 

“The purpose of this letter is give you notice that Sunderland City Council will, if it is found liable to the Claimants, or any of them, seek a contribution from the GMB and/or Unison pursuant to the Civil Liability (Contribution) Act 1978 in respect of all sums that the Council may be adjudged liable to pay to the Claimants.  I have enclosed a formal Notice to this effect, which is to be filed with the Employment Tribunal, together with a copy of the [Amended Particulars of Claim] in the proceedings.

I would draw your attention to the following points, namely: -

(a) The Council’s position is that the Employment Tribunal has jurisdiction to determine the amount of contribution between the Respondents as part of these proceedings; and

(b) Whilst some Claimants have withdrawn specific claims against the GMB, the GMB remains a party to the proceedings and the Employment Tribunal is entitled to determine the question of the appropriate contribution to any award which the Employment Tribunal may make against the Council even where an individual Claimant no longer makes a financial claim directly against the GMB.

For the avoidance of any doubt, no contribution is to be sought by the Council in respect of the previously paid bonus payments, although you will note the Council’s position in respect of the Employment Tribunal’s Judgement relating to the bonus issues, i.e. as pleaded in its submitted Appeal to the Employment Appeal Tribunal.”

 

The contribution notice in each case reads:

 

“TAKE NOTICE the claims in these proceedings have been brought by the Claimants, inter alia, against the First Respondent.  In the proceedings the Claimants claim various forms of relief, a copy of the current Consolidated Particulars of Claim is attached to this Notice.  The First Respondent denies that it is liable to the Claimants, or any of them, but if it is held that it is liable to the Claimants, or any of them, the First Respondent claims against you, the Third Respondent, such contribution thereto as the Employment Tribunal may find to be just, pursuant to the Civil Liability (Contribution) Act 1978 in respect of all sums that it may be adjudged liable to pay to the Claimants, or any of them.

 

5.            The Unions’ solicitors applied to strike out the claims sought to be raised in the contribution notices.

 

6.            On 4 October 2010 the Council applied for an order pursuant to rule 10 (2) (d) of the Employment Tribunal Rules of Procedure that the Claimants disclose the settlement agreement between themselves and the Unions. 

 

7.            Both applications – the Unions’ to strike out the contribution claims and the Council’s for disclosure of the settlement agreement – came before a Tribunal chaired by Employment Judge Rennie on 12 and 13 January 2011.  By separate orders and judgments sent to the parties on 31 March 2011 both applications were allowed.  We wish to say at this stage that the Reasons in both cases were full and careful.

 

8.            What is before us is the Council’s appeal against the dismissal of the contribution claims and the Claimants’ appeal against the disclosure order.  All the counsel who appeared before us also appeared before the Tribunal.  We are grateful for their thorough and learned submissions. 

 

A. THE CONTRIBUTION APPEAL

 

9.            As appears from the contribution notices, the Council bases its claims squarely on the Civil Liability (Contribution) Act 1978.  We should say something first about the background to that Act and the legislative history.  That is authoritatively set out in the speech of Lord Bingham in Royal Brompton NHS Trust v Hammond [2002] 1 WLR 1397, at paras. 2-6 (pp. 1399-1402), but for present purposes we can be briefer. 

 

10.         At common law, where two wrongdoers (A and B) were liable for the same damage - either because they were jointly liable for the same wrong (joint liability) or because they committed separate wrongs which contributed to the damage (concurrent liability) – and the victim chose to recover only against A, A had no right to claim any contribution from B.  That obvious potential unfairness was rectified by the Law Reform (Married Women and Tortfeasors) Act 1935, section 6 (1) (c) of which provided that:

 

“Where damage is suffered by any person as a result of a tort ... any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by him in respect of the liability in respect of which the contribution is sought.”

 

 

11.         The right to contribution thereby created extended only to tortfeasors – that is, for the non-technical reader, persons liable for an act which was wrongful as a matter of general law.  The 1978 Act, which replaced the 1935 Act was enacted (principally) in order to extend the right to persons liable in respect of the same damage by other kinds of wrongful conduct, for example by way of breach of contract or breach of trust.  The relevant provisions are as follows:

 

“1  Entitlement to contribution

(1)     Subject to the following provisions of this section, any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with him or otherwise).

(2)-(4) ...

(5)     A judgment given in any action brought in any part of the United Kingdom by or on behalf of the person who suffered the damage in question against any person from whom contribution is sought under this section shall be conclusive in the proceedings for contribution as to any issue determined by that judgment in favour of the person from whom the contribution is sought.

(6)     References in this section to a person's liability in respect of any damage are references to any such liability which has been or could be established in an action brought against him in England and Wales by or on behalf of the person who suffered the damage; …

2   Assessment of contribution

(1)     Subject to subsection (3) below, in any proceedings for contribution under section 1 above the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage in question.

(2)     Subject to subsection (3) below, the court shall have power in any such proceedings to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity.

(3) ...

3-5 ...

6  Interpretation

(1)     A person is liable in respect of any damage for the purposes of this Act if the person who suffered it (or anyone representing his estate or dependants) is entitled to recover compensation from him in respect of that damage (whatever the legal basis of his liability, whether tort, breach of contract, breach of trust or otherwise).

(2)-(3) ...

(4)     In this Act, except in section 1 (5) above, “action” means an action brought in England and Wales.”

 

12.         A similar lacuna existed in Scottish law.  It was addressed by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940, section 3 of which reads:

 

“Contribution among joint wrongdoers

(1) Where in any action of damages in respect of loss or damage arising from any wrongful acts or negligent acts or omissions two or more persons are, in pursuance of the verdict of a jury or the judgment of a court found jointly and severally liable in damages or expenses, they shall be liable inter se to contribute to such damages or expenses in such proportions as the jury or the court, as the case may be, may deem just: Provided that nothing in this subsection shall affect the right of the person to whom such damages or expenses have been awarded to obtain a joint and several decree therefor against the persons so found liable.

(2) Where any person has paid any damages or expenses in which he has been found liable in any such action as aforesaid, he shall be entitled to recover from any other person who, if sued, might also have been held liable in respect of the loss or damage on which the action was founded, such contribution, if any, as the court may deem just.”

 

13.         It is the Council’s case that if the Claimants succeed in their claim against it the Unions will be “person[s] liable in respect of the same damage” within the meaning of section 1 (1) of the 1978 Act and that it is accordingly entitled to contribution against them.  More particularly the argument goes as follows:

 

(1) Part of the Claimants’ claim against the Council is for damages occasioned by the conclusion of the Agreement: see head (iii) of the prayer for relief (para. 2 (5) above).

 

(2) If the Council had unlawfully discriminated against the Claimants by entering into the Agreement, so also had the Unions.  The Claimants had indeed originally expressly so pleaded – see para. 36 of the Amended Particulars of Claim (para. 2 (2) above) – and it made no difference that they had since withdrawn that claim.

 

(3) Accordingly, insofar as the Claimants succeeded in establishing that they had suffered damage as a result of the conclusion of the Agreement, the Unions also were liable in respect of that damage.

 

14.         The reason why the Tribunal dismissed that claim was that it had no jurisdiction to determine a claim under the 1978 Act: since the issue is one of pure law, we will not reproduce its detailed reasoning here.  Whether it was right to do so was the principal issue before us, although the Unions also sought if necessary to uphold the striking out of the claim on other grounds. 

 

15.         Before we turn to the detailed arguments we should point out that, although the claims in the present case are of a rather unusual kind, if the employment tribunal has jurisdiction to entertain claims for contribution between persons jointly or concurrently liable under the anti-discrimination legislation the issue is one which would in principle arise in very many, and more typical, cases.  It is very commonly the case that more than one legal person will be responsible in respect of an act of unlawful discrimination.  Most obviously, in every case where the act complained of is done by an employee in the course of his employment both the individual employee and his employer will be jointly liable[3], whichever of them is in fact proceeded against[4], unless the employer can establish the defence now provided by section 109 (4) of the Equality Act 2010.  But joint and concurrent liability can arise in other ways.  Examples in the case-law include Ross v Ryanair Ltd [2005] 1 WLR 1349, where a disabled airline passenger was deprived of the use of a free wheelchair as a result of separate breaches of the Disability Discrimination Act 1995 by the airline and by the airport operator; Bullimore v Pothecary Witham Weld [2011] IRLR 18, where previous employers gave a damaging reference about the claimant to a prospective employer because she had brought a sex discrimination claim against them, and the prospective employer for the same reason withdrew a job offer; and Sivanandan (above), where a representative of a local authority and representatives of a potential employer formed a panel which made a decision not to offer a post to the claimant because she had brought previous a discrimination claim.  In all these types of case if the 1978 Act applies the party against whom the claimant has recovered compensation will in principle be entitled to claim a contribution from the other.  It is true that such claims have been rare, if not unknown, in the past.  In the case where the joint discriminators are an employer and an employee, one reason no doubt is that the employer (who will in practice be the party likely to have actually to pay) may not think it right, or in any event worthwhile, to claim contribution against the employee.  But another reason for the absence of such claims is the practice which developed over the years of tribunals “apportioning” liability so that the employer and employee respondents were each separately liable to the claimant for part of his or her compensation: this had the same effect, as between the respondents, as an award of contribution[5]. However, that practice has recently been disapproved – see London Borough of Hackney v Sivanandan [2011] ICR 1374 and Bungay v Saini (UKEAT/0331/10) – and the focus is in the future likely to shift to the question of contribution proper.  The issue is accordingly one of real practical significance.

 

16.         Logically, there are two distinct questions – first, whether the 1978 Act on its true construction confers a right to contribution in the case of liability for discrimination in the employment field; and secondly whether, if so, the employment tribunal itself has jurisdiction to determine such claims or whether they can be brought only in the ordinary courts.  No doubt the two questions are related: for one thing, it would be inconvenient, to put it no higher, if the Act did confer such rights but a party seeking to enforce them had to start a separate claim in the County Court.  Nevertheless we think it important in the interests of clear analysis to take them separately.  We start with the question of jurisdiction.

 

17.         The starting-point is that any jurisdiction to consider contribution claims of the kind in question must derive not from the 1978 Act, which is concerned simply with the creation of a right to contribute rather than with the question of where it may be enforced, but from the statutes which expressly confer jurisdiction on the employment tribunal.  This was indeed common ground between the parties.  The case advanced by Mr Reade on behalf of the Council was not that the 1978 Act as such conferred the relevant jurisdiction but rather that the jurisdiction of the employment tribunal to determine the primary claims brought with it the power to determine any contribution claims between the respondents.

 

18.         Each of the anti-discrimination statutes now superseded by the 2010 Act[6] has its own provision conferring jurisdiction on the employment tribunal, but they are in substantially identical terms.  In the present case the relevant statute is the Sex Discrimination Act 1975.  Section 63 reads (so far as material):

 

“Jurisdiction of employment tribunals

 (1)        A complaint by any person (“the complainant”) that another person (“the respondent”)—

(a) has committed an act of discrimination or harassment against the complainant which is unlawful by virtue of Part II or section 35A or 35B, or

(b)  is by virtue of section 41 or 42 to be treated as having committed such an act of discrimination or harassment against the complainant,  

may be presented to an employment tribunal.

 (2)        …”.

 

19.         In our view it is plain that that provision does not confer jurisdiction to entertain a claim under the 1978 Act.  A contribution claim is not a claim “by … [a] complainant” that a respondent has committed an act of discrimination: it is a claim by a respondent that another person has committed such an act.  Mr Reade’s submission that, once the tribunal is seised of the primary discrimination claim, that brings with it jurisdiction to entertain contribution claims between respondents seems to us wrong for at least three reasons:

 

(1) It is contrary to the plain words of the statute as set out above.

 

(2) Contribution claims may be ancillary in the sense that they cannot exist unless there is a distinct “primary” claim.  But in another, and for present purposes more relevant, sense they are not ancillary but free-standing.  It is not the case that contribution claims under the 1978 Act can only arise between co-defendants, and thus only in the context of the proceedings raising the primary claim: on the contrary, they may be brought in separate proceedings (and indeed in circumstances where the party claiming contribution has settled the primary claim and never been a defendant at all).  They should thus in principle be the subject of an explicit provision in primary legislation conferring jurisdiction – which they are not: see above.[7]  That difficulty cannot be got round by saying in a case like the present “well, the two wrongdoers in question are parties to the proceedings already”.  Quite apart from the objection of principle, it would be anomalous, and contrary to the scheme of the 1978 Act from which the right to contribution must ultimately derive, if the employment tribunal had jurisdiction where contribution was sought against an existing party but not where it was sought against someone whom the claimant had not chosen to proceed against.

 

(3) Following on from (2), if it were intended that employment tribunals should have jurisdiction to entertain contribution claims, one would expect to see provision in the relevant primary legislation not simply for a procedure by which other co-discriminators could be joined by the respondent actually proceeded against but also for addressing the question of limitation.  Section 10 (5) of the Limitation Act 1980 provides a special limitation regime governing claims for contribution, but it cannot readily be applied to such claims arising in the context of discrimination cases in the employment tribunal. 

 

20.         We should note for completeness that the Council’s Notice of Appeal, reflecting the way in which the case had been argued in the Tribunal, contends that jurisdiction to determine contribution claims derives from section 65 (1) (b) of the 1975 Act, which empowers a tribunal to make

 

“… an order requiring the respondent to pay to the complainant compensation of an amount corresponding to any damages he could have been ordered by a county court or by a sheriff court to pay if the complaint had fallen to be dealt with under section 66 [i.e. as a claim outside the employment field]”.

 

That point was not pursued in Mr Reade’s skeleton argument – in our view clearly rightly, since we did not see how section 65 (1) (b) could even arguably have supplied the necessary jurisdiction.

 

21.         We accordingly believe that the Tribunal was right to hold that it had no jurisdiction to entertain the Council’s contribution claim, and the appeal must be dismissed.  It follows that we do not strictly have to decide the question whether the Council has such a claim at all, albeit justiciable in the County Court or High Court rather than the employment tribunal.  But we heard extensive submissions on the question, and we think we should express our view.

 

22.         It was the Unions’ case that the 1978 Act is concerned only with liabilities falling for determination in the High Court or County Court and thus that it creates no right to contribution in relation to liabilities for discrimination in the employment field.  Mr Millar and Mr White, for the Unions, placed particular reliance on section 1 (6) of the Act, which defines the liability in respect of which contribution may be awarded as being a liability established, or capable of being established, in an “action”; and on section 2 (1), which refers to the assessment of contribution “by the court”.  Although neither “action” nor “court” is defined (save for the provision in section 6 (1) that an action means “an action brought in England and Wales”), they submitted that the two terms taken together can only fairly be read as referring to court proceedings.  Both terms have technical meanings well understood by lawyers.  Specifically:

 

(1) In relation to “action” we were referred to section 225 of the Judicature Act 1925, which ultimately derives from the Judicature Act 1873 and defines “action” as “a civil proceeding commenced by writ or in such other manner as may be prescribed by Rules of Court”[8].  In Herbert Berry Associates Ltd v Inland Revenue Commissioners [1977] 1 WLR 1437 Lord Simon said, at p. 1446C:

 

“The Companies Act 1948 is a statute dealing with technical matters, and one would expect the words therein to be used in their primary sense as terms of legal art. The primary sense of “action” as a term of legal art is the invocation of the jurisdiction of a court by writ, …”. 

 

Mr Millar pointed out that the Employment Tribunals Act 1996 used the term “action” in precisely this technical sense in the section empowering the minister to confer jurisdiction on employment tribunals to hear contractual claims: see section 3 (2).

 

(2) In relation to “court” we were reminded that when the legislature means that term to cover tribunals it says so expressly: see, e.g., sections 12 (3) and 13 (5) of the Administration of Justice Act 1960; section 19 of the Contempt of Court Act 1981; and section 37 of the Freedom of Information Act 2000.  Otherwise the “court” and “tribunal” are recognised as distinct: Mr Millar pointed out that the 1996 Act expressly designates the Employment Appeal Tribunal, but not employment tribunal, as a court of record (section 20 (3)).

 

The Unions also took the point that the Employment Tribunal Rules of Procedure contain no provisions equivalent to those of Part 20 of the Civil Procedure Rules under which a contribution claim may be brought and if necessary the party against whom contribution is sought brought into the proceedings. 

 

23.         It was Mr Reade’s case that the Unions’ focus on the words “action” and “court” was unduly narrow and technical.  More particularly:

 

(1) We were referred to the decision of the Divisional Court in Peach Grey & Co. v Sommers [1995] ICR 549, in which, purporting to follow observations made in the House of Lords in Attorney General v British Broadcasting Corporation [1981] AC 303, it was held that an industrial tribunal was an “inferior court” within the meaning of RSC O.52 so that it had jurisdiction to punish an act of contempt.  We were also referred to Vidler v UNISON [1999] ICR 546.

 

(2) Mr Reade submitted that the language of “actions” was now largely obsolete and that courts and tribunals used similar language of “claim” and “claim form”.

 

As to the absence of any procedural rules corresponding to Part 20 of the CPR, he submitted that rule 10 of the Rules of procedure gave tribunals wide procedural powers; and that in any event any lacuna in such powers could not affect the existence of the substantive right. 

 

24.         We prefer the Unions’ submissions.  In our view the natural reading of the sections on which they rely is indeed that the 1978 Act is concerned only with claims justiciable in the ordinary courts.  No doubt the use of the words “court” and “action” is not conclusive, as the cases referred to by Mr Reade show; and it would be possible to construe them expansively if the context showed that that was the intention of Parliament.  But we can see nothing in the context to suggest any such intention or that the draftsman was not using the technical language that he did in the sense in which it would normally be understood by lawyers.  It is also necessary to bear in mind the legislative history.  If the 1978 Act had been a wholly new creation it would have been at least reasonable to argue that Parliament must have intended to cover the statutory torts of discrimination which were by then already in existence (albeit fairly freshly-minted), even if the language was rather inept for the purpose.  But the essential provisions of the 1978 Act derive from the 1935 Act, and although the former was intended to extend the scope of the latter that was only in certain limited and specific respects.  We do not regard this point as decisive, since in principle it would be possible to construe the statute as “always speaking” and thus as applying to subsequently-created rights; but in our view the argument nevertheless carries some weight.  The Scottish dimension should also be borne in mind.  The 1940 Act applying in Scotland appears to be no more extensive than the 1935 Act applicable to England and Wales: thus to the extent that the Claimants relies on the fact that the 1978 Act post-dates the enactment of the first discrimination statutes, that involves opening up an undesirable hiatus between the law to be applied by tribunals in England and Wales and in Scotland.

 

25.         The construction which we favour also has the merit of being consistent with our conclusion on the issue of jurisdiction.  If it were otherwise the position would be that Parliament had created a right to contribution as between joint or concurrent discriminators in the employment field but had incompetently neglected to give the appropriate jurisdiction to employment tribunals to enforce those rights, whereas in our view it has provided for no right to contribute in this field at all, which is a more coherent position.  The truth as we see it is that the legislature has simply failed to consider the question of contribution in the context of liability for unlawful discrimination, and since the right to contribution is a creature of statute we cannot repair that omission.

 

26.         We do not regard this conclusion with any satisfaction.  In the straightforward case where the joint or concurrent discriminators are at arm’s length, as in Sivanandan or Bullimore, the situation seems to us indistinguishable from that of tortfeasors at common law, where it has been recognised since 1935 (or 1940 in Scotland) that it is not fair that the party against whom the claimant chooses to proceed or recover should have no recourse against others who have contributed to the same damage.  There is nothing special about discrimination which makes such an outcome acceptable – and the Court of Appeal has indeed, in Ross v Ryanair (above), held that the 1978 Act applies in the case of discrimination claims justiciable in the ordinary courts[9].  We accept that the issues of policy might be less straightforward in cases where an employer seeks contribution against an employee whose conduct has rendered him liable for discrimination: although the law appears to be that there is nothing to prevent such a claim (see Lister v Romford Ice and Cold Storage Co. Ltd [1956] AC 555), that is a conclusion which some have found uncomfortable.  Be that as it may, however, in our view any right to contribution, whether precisely mirroring the position as regards common law claims or modified to some extent to suit the employment context, can only be created by Parliament.

 

27.         The other bases on which the Unions argued that the contribution claim should be struck out were:

 

(a) that even if a contribution claim would otherwise have been within the jurisdiction of the Tribunal it was precluded by section 62 (1) of the 1975 Act, which provides that:

 

“except as provided by this Act, no proceedings, whether civil or criminal, shall lie against any person in respect of an act by reason that the act is unlawful by virtue of a provision of this Act”;

 

(b) that the Claimants’ only viable claims against the Council were in debt rather than for damages, so that the 1978 Act had no application; and

 

(c) that even if the Claimants had a viable claim in damages against the Council the damage in question was not the same as that in respect of which the Unions might in principle be liable under section 12 (3) (b).

 

If we had held that the Tribunal otherwise had jurisdiction to entertain the Council’s contribution claims we doubt if we would have held that that jurisdiction was excluded by section 62 (1), whose primary purpose is plainly to prohibit the bringing of claims under the Act in a different forum.  The issues arising under heads (b) and (c) are rather less straightforward, and since they are of no general interest we see no advantage in reviewing them here. 

 

B. THE DISCLOSURE APPEAL

 

28.         On 2 September 2009, in the course of the hearing of what was designated as the “second tranche” of the claims, Mr Engelman announced to the Tribunal that the Stefan Cross Claimants had reached a settlement with UNISON.  It is common ground, though there was no equivalent public announcement, that shortly afterwards they also reached a settlement with GMB.  Although Mr Engelman neither then nor subsequently gave any details of the terms of the settlement, the great majority of the Claimants withdrew their claims against the Unions under section 12; and insofar as any have not yet done so that appears to be by reason of oversight or administrative failure.  The Tribunal accordingly inferred – and the inference has not been challenged – that it was a term of the settlement that the claims in question, but not the claim for a declaration under section 77, should be withdrawn.  Statements since made by the Unions about the effect of the settlements confirm this understanding: Mr White apparently told the Employment Tribunal that no financial claim of any kind was now being pursued against the Unions, whether under section 12 or section 77.

 

29.         On 4 October 2010, as we have said, the Council requested inspection of the settlement agreements between the Claimants and GMB and UNISON (which it is accepted exist in written form).  The agreements were said to be relevant for the following reasons:

 

“The effect of the compromise of any claims against the Second Respondent and Third Respondent may have had the effect in law of compromising the claims against the First Respondent, this arising from the statutory tortious nature of discrimination claims and the settlement of a claim in that respect;

The terms of any compromise may give rise to an argument that that the maintenance of claims against other parties to the Collective Agreement are an abuse of the process and/or unreasonable conduct;

The issue of the tortious nature of the claims and application of the third party procedure cannot be fairly determined as an issue without disclosure of the underlying terms of agreement between the Claimants, Stefan Cross, Solicitors, and the Second Respondent and the Claimants, Stefan Cross, Solicitors, and the Third Respondent.  This issue is now to be determined as an Application within the main proceedings; and

Any agreement that has been concluded between the Claimants, Stefan Cross, Solicitors, and the Second Respondent and the Claimants, Stefan Cross, Solicitors, and the Third Respondent that seeks to discharge, release, or reduce the liability of the Second Respondent and Third Respondent, if any, in connection with any claim that is presently being made against the First Respondent is relevant to the proceedings.”

 

30.         Stefan Cross refused the request on the basis that the terms of the settlement were not relevant; alternatively that, even if they were, inspection should be refused because they were confidential and/or subject to legal professional privilege.  The Unions’ position was and remains neutral on the application.

 

31.         Before the Employment Tribunal Mr Engelman abandoned any argument based on legal professional privilege but sought to rely also on a contention that the agreements had the character of without prejudice documents and on article 8 of the European Convention of Human Rights.

 

32.         We consider first the question of relevance.  The Tribunal dealt with this at para. 10 of its Reasons.  The first part of the paragraph says that the Claimants’ claim for damages against the Council is live and that if that claim is well-founded the Unions’ actions would also be unlawful under section 12 of the 1975 Act, even if their originally pleaded claims to that effect were no longer being pursued.  It also points out that UNISON had expressly pleaded the Agreement by way of defence in some late-pleaded claims which appeared still to advance claims for substantive relief against it.  The Tribunal observes that that fact “underline[d] the relevance or potential relevance” of settlement.  It continues:

 

“It provides a defence for the second and third respondents.  For all the first respondent knows, it may in some way have compromised the claimants’ ability to assert that there has been discriminatory treatment or in any other way to affect liability against the first respondent and it may be that continuation of the proceedings or some part of them against the Council is an abuse of process.  We failed to see how the compromise as against two respondents of contentions which – in some respects directly, in other respects as part of the same factual background – continue to be maintained against another respondent could be anything other than relevant.”

 

33.         We should start by saying that we cannot accept the general proposition in the final sentence of that passage.  The fact that A has settled against B does not automatically mean that the terms of the settlement are disclosable in his proceedings against C in a related claim: some specific reason needs to be shown why the terms of the settlement may be relevant to the surviving claim.  The Tribunal identifies two such specific reasons, namely (a) that the terms of the settlement may have compromised the Claimants’ ability to assert that the terms of the Agreement were discriminatory; and (b) that they might have rendered the pursuit of the claim against the Council an abuse.  These two points reflect the grounds advanced by the Council in the first bullet-point of its application (see above).  We take them in turn.

 

34.         As to (a), although this is not clear from the Tribunal’s formulation, it is adequately clear from the original request, and Mr Reade in any event confirmed before us, that it was a reference to the rule that if a claimant has settled a money claim with one joint tortfeasor on a “full-value” basis he cannot claim any further amount against another tortfeasor: see Jameson v Central Electricity Generating Board [2000] 1 AC 455.  But in fact, even if Jameson did not apply so as wholly to extinguish the claims, any sums paid in respect of the same loss could be set against the compensation recoverable from the Council.  The Council’s point, accepted by the Tribunal, was that it was accordingly necessary to see the Agreement in order to ascertain whether the Unions had in fact paid any sum to the Claimants by way of compensation under section 12 – which related to the same damage for which they were claiming against the Council under section 6 – and if so on what basis.

 

35.         Mr Engelman submitted that if that argument were correct it would be contrary to the policy underlying the anti-discrimination legislation, both at domestic and at EU level.  A discriminator should not be allowed to escape liability simply because another discriminator had already paid compensation.  He referred us to Nicholls v Coventry City Council [2009] IRLR 345.  The point decided in Nicholls was somewhat different; but we can certainly see the force of the argument that Jameson may not be directly applicable in the field of discrimination, since damage is not the gist of the action in the same sense as in negligence, and a claimant is in principle entitled to other relief besides compensation.  However, the fact remains that the Claimants are claiming to have suffered damage and are seeking compensation in relation to it.  Mr Engelman’s point does not address the fact that any recovery made from the Unions in respect of that damage must go in reduction of any award of compensation against the Council.

 

36.         Our real problem with Mr Reade’s argument is not so much with its theoretical basis, at least to the extent identified above, as with the fact that it seems to us rather improbable, to put it no higher, that the Unions have in fact paid any sum under the settlement, or in any event that they have made any payment to individual Claimants by way of compensation for damage said to have been suffered by reason of the conclusion of the Agreement: even if a cash payment of some sort to over a thousand claimants were plausible, it would be very surprising if it had been managed to be kept a complete secret.[10]  But it would have been very easy for Mr Engelman at any time to make a categorical statement (with the support if necessary of a witness statement) that no such payment had been made: that would have killed the application (at least as regards this basis).  Not only did he not do so: he maintained both before the Tribunal and before us a stance of careful and evidently calculated uncommunicativeness about any aspect of the settlement.  In our view the possibility raised by the Council that the settlement agreements would contain material relevant to compensation was not so remote as not to call for some response; and in the absence of such response a bare denial of relevance is insufficient.  On that basis, though not without some hesitation, we find the case on relevance to be made out.

 

37.         Having reached that point, we need not express any conclusion on point (b).  We are bound to say that we have not found it easy to see how it could be an abuse of process for the Claimants to continue the claim for compensation against the Council while abandoning it against the Unions.

 

38.         We turn to Mr Engelman’s objection based on confidentiality.  The Tribunal dealt with this at paragraph 11 of the Reasons.  It pointed out that there was no evidence of any kind supporting Mr Engelman’s assertion that the terms of the agreements were confidential, still less explaining the basis of that assertion; and it pointed to a number of factors which suggested that they were not.  The Notice of Appeal challenges the Tribunal’s finding that the settlement agreements were not confidential, drawing attention to various factors which it is said should have led to the opposite conclusion.  We do not find it necessary to enter into that debate.  Even if the terms of the agreements were confidential that is not by itself an answer to a claim for disclosure.  It is very common for parties to have to disclose confidential documents and information – subject to course to the restriction on their use otherwise than for the purpose of litigation.  Clearly where there is a high degree of confidentiality that may go into the balance in deciding whether disclosure is indeed necessary for a fair disposal of the issues, and it may justify special care being taken to limit the precise scope of disclosure – for example by redaction of material which is particularly confidential but not in itself material.  But such a case must be properly demonstrated.  The material relied on by the Claimants amounts to no more than that they negotiated the settlements in private and that they involved other parties (as to whom no details are given).  Neither factor begins to take this case out of the ordinary; and no more particular case was advanced.  It is noteworthy in this connection that the Unions have no objection to disclosure.

 

39.         Although, as we have said, Mr Engelman sought to reinforce his case by reference to article 8 of the ECHR we were unable to see how this assisted the argument.  There is no evidential basis for the assertion that the article 8 rights of the Claimants or others are engaged; but, even if they are, a need for the disclosure in question, applying the usual tests applicable in civil litigation, would be a sufficient justification. 

 

40.         We turn finally to Mr Engelman’s contention that the agreements attracted were subject to “without prejudice privilege”.  There was some debate before the Tribunal as to whether the agreements were in fact marked “without prejudice”; but it was eventually established that they were not.  (Even if they had been, that would have been far from decisive: it is very common for documents to be marked “without prejudice” when they do not in fact attract the relevant privilege.)  The Tribunal essentially rejected Mr Engelman’s argument on the straightforward basis that the settlement agreements were concluded agreements and could not of their nature attract the protection accorded to documents generated in the course of negotiation.  That seems to us obviously correct.  Mr Engelman sought to argue that the policy considerations underlying the well-established privilege accorded to concessions made in negotiation, as authoritatively explained by the House of Lords in Rush & Tompkins Ltd v Greater London Council [1989] AC 1280, also precluded the disclosure of a settlement agreement in multi-party litigation between some parties which contained concessions that might damage their case in the continuing litigation against the other parties.  That is in our view plainly heterodox: “without prejudice privilege” is about, and only about, protection of negotiations. 

 

41.         We accordingly dismiss the appeal against the disclosure order.

 

CONCLUSION

 

42.         Both appeals are dismissed.

 

43.         We regret the delay in promulgating this judgment, the reasons for which have been communicated to the parties.