Reddel v Dunn & Anor (t/a A H Allen & Partners) [1991] UKEAT 467_90_0705

EAT
Reddel v Dunn & Anor (t/a A H Allen & Partners)
[1991] UKEAT 467_90_0705 · 1991-05-07
MR JUSTICE WOOD (PRESIDENT) : This is an Appeal by Mrs Reddel from a Decision of an Industrial Tribunal sitting at Sheffield who on the 10 July 1990, under the Chairmanship of Mr Bigham, ordered her to pay the sum of £600 towards the cost of her failed application to that Tribunal alleging against her former employers Mr Dunn & Dr P Clare t/aAH Allen & Partners, that she was entitled to equal pay for "like work" with her comparator, who was chosen and named, Mr Roy Housley. The Respondents were public analysts and she and Mr Housley were working there as assistant analytical chemists.The Originating Application was dated the 29 June 1989. Mrs Reddel had left her employment with the Respondents on the 2 January 1989, to better herself, and had started work with another authority on the 3 January.She had been employed by them since September 1980 and some time at the latter end of 1988 she had been aware that different analysts in the firm were paid different salaries but had not pursued that matter under the "grievance procedure" which is provided for in her contract of employment and under which she could have required, and no doubt obtained, some explanation as to why the different members of the staff were being paid different salaries and indeed different bonuses as is apparent from the documentation.Although the Originating Application was dated, as we have said, in the June of 1989 the matter was not heard until, 3 days, in January, February and March of 1990 and a good deal was said about the apparent delay in the matter coming forward.The case being brought, was as we have said, on "like work". It is important to appreciate that because when one looks at Section 1 of the Equal Pay Act 1970 there are three bases upon which an equality clause can be inserted in a contract of employment, taking them in reverse order under sub section (2)(c) are the equal value provisions, with which we are familiar, under (2)(b) is the work rated as equivalent, and of course it has to be rated as equivalent by the provisions of sub section (5) on a study undertaken with a view to evaluating it; and then under 1(2)(a) there is the "like work" provision, and that is the old one where there must be "like work" with no material differences between the two jobs being done. Therefore it was for the Applicant to establish that the work carried out by herself and by Mr Housley was "like work".She received advice from a solicitor and from the Equal Opportunities Commission and is represented by a solicitor, presumably, from the Harehills & Chapeltown Law Centre. The hearing, as we have said, took place over some 3 days and evidence from both sides was called.The Tribunal found that the work carried out by Mrs Reddel and that carried out by her comparator were not "like work" in a number of ways. They are set out in the original Decision and clearly show that the Tribunal accepted evidence given on behalf of the partnership and did not accept, Mrs Reddel on each of those facts. I do not know to what extent it was challenged, but they made the clearest possible findings against the Applicant, In effect the "like work" comparison clearly failed.After that Decision was given, solicitors representing the Respondents partnership, wrote a long letter to the Industrial Tribunal, it was dated 14 May 1990 and in some 2½ pages set out a number of reasons and applied for costs. That letter was sent to those representing Mrs Reddel and a reply was received dated 2 June 1990, which was fairly short but was nevertheless dealing with the points which were being made. The Tribunal gave their second full set of Reasons which as a result of a meeting, which is noted as being on Tuesday 10 July 1990 they ordered, as we have said, a sum of costs to be paid of £600. They in effect gave three bases, severally and jointly I imagine, for reaching their Decision.They first of all say, in the middle of paragraph 2:
"We find that, on an overall consideration of the evidence adduced at the substantive hearing there would have been nothing to prevent her from raising the matter as a grievance with the respondent partners and seeking to secure an adjustment of her then current pay and an addition to her previous pay.
That seems to be an indication that investigation would have shown up these differences. Secondly, they refer to the delays; thirdly, they say:
"that the applicant's advisor was provided with an opportunity in November 1989 to inspect the salary and wage records of all the respondents' employees in the period from 1980 until 1989, and was consequently fully aware of the earnings of other employees of the partnership. Notwithstanding this the application was pursued in reliance solely upon the level of pay of the comparator selected by the applicant. We accept that she was fully entitled so to do, but observe that, with this in mind, it would be apparent to her that she must adduce clear evidence to establish before the tribunal that the work that she was required to so should be rated as equivalent to that of the comparator."
It is not entirely easy to understand that sentence but we imagine that the evidence that was required was "he was engaged on like work".The Appeal before us is argued on a number of grounds. May we first, before coming to the essential substance of the Appeal, deal with Rule 11 of 1985 Statutory Instrument providing the Rules of the Industrial Tribunals. Rule 11(1) reads:
"subject to paragraphs (2), (3) and (4) of this Rule, a tribunal shall not normally make an award in respect of the costs or expenses incurred by a party to the proceedings but where in its opinion a party (and if he is a respondent whether or not he has entered an appearance) has in bringing or conducting the proceedings acted frivolously, vexatiously or otherwise unreasonably the tribunal may make ..."
Sub-section (2) which is mentioned in Rule 11(1) reads:
"Where the tribunal has on the application of a party to the proceedings postponed the day or time fixed for or adjourned the hearing, the tribunal may make orders against or, as the case may require, in favour of that party as at paragraph (1)(a) and (b) of this Rule as respects any costs or expenses incurred or any allowances paid as a result of the postponement or adjournment."
That sub Rule (2) seems to us, to be intended to cover those situations where the proceedings have been adjourned for some reason or other for which the parties seeking the adjournment would normally be blamed, and as one knows, in the High Court and the County Court, when an adjournment is opposed and is nevertheless granted, it is not uncommon for an Order to be made, either "costs reserved" or an Order for "costs thrown away" in favour of the party who has opposed the adjournment. It does not seem to us that the question of delays during the preparation for the hearing are likely to be an apt basis for an Order for costs at the end of the ultimate hearing. Although the practice is essentially for the Tribunal themselves, it would seem perhaps more apposite that where an application is to be made for costs in respect of an adjournment that there should be a letter written at the time so that both parties shall know that that is an issue which will be dealt with by the Tribunal either then or in due course.The issue at the end of the substantive hearing falls in our view within Rule 11(1) and we would merely emphasise the words "has in bringing or conducting the proceedings acted unreasonably". Mr Bedeau has drawn our attention to a Decision in this Court of Davidson v. John Calder (Publishers) Ltd reported [1985] ICR p.143.In that case an Applicant had succeeded against the Respondent before an Industrial Tribunal and been awarded compensation, had sought an Order for costs and had been refused an Order for costs, therefore there is a distinction on its own facts from the facts of this case. The Tribunal decided that they would not make an Order for costs and said this:
"We considered that an order for compensation was a sufficient reflection of the views we formed on the respondent's conduct and no order for costs on that application should be made."
The Applicant appealed in person to this Court and the matter was remitted for further consideration. The Judgment of this Court was given by Mr Justice Bristow; he looked at the Rule, which was the Rule as it stands today although it was the earlier regulation of 1980, and he indicated that when looking at "conduct" it was that which occurred in the course of the proceedings, and you could not look at conduct outside those proceedings. He was not in that case considering the word "bringing" because of course it was the Respondent there against whom costs were sought and not the Applicant. Where the Applicant is involved of course the word "bringing" is extremely important.Therefore, in our judgment the overall situation can be considered by the Industrial Tribunal when considering whether an Applicant has been unreasonable in the bringing or conducting of proceedings.What then was the Decision in the present case. First of all, two general observations. We must remind ourselves that when reading Decisions of Industrial Tribunals it is important to read them as a whole and not to seek to read them as pleadings and to pick out a phrase here or a phrase there, but to read the Decisions as a whole. Secondly, we must remind ourselves that we are dealing here with the exercise of a judicial discretion and that it would be wrong for us to interfere with the exercise of that discretion save on well recognised principles.The Tribunal clearly rejected and firmly rejected the case brought by the Applicant. It saw and heard the parties over a substantial period, and was able to watch and observe cross-examination, that therefore puts the Industrial Tribunal in a most advantageous position so far as assessing the situation and we must remember that at every juncture.We have dealt with the question of delay and possibly delay is best dealt with by detailed orders of costs thrown away at each juncture, but in essence here the Tribunal were saying to themselves; one, we do not think that it was very reasonable not to have asked rather more about this situation before bringing the proceedings or in any event persisting with these proceedings, we do not think that this was a reasonable approach to the matter; secondly, they were really saying, as we read it, that this case was really a hopeless case and in essence should not have been brought on the facts as they have found.Mr Bedeau submits that anyone is entitled to bring a case and the very fact that your case does not agree with that of the Respondents should not be a basis for awarding costs. That in our judgment is taking it rather too far the other way. The Tribunals must be in a position to have some control over the proceedings before them by the award of costs and as the Rule indicates it is not normal to make an award of costs; indeed it is our experience here that Industrial Tribunals seldom do make orders for costs, when they do it is essentially a matter within their discretion. We do not feel therefore that Mr Bedeau has satisfied us that there is an error in the approach to the Decision to award costs.However, once that stage is reached there is a further important decision to be made and that is as to the quantum. The Tribunal here clearly had some evidence before it of the means of Mrs Reddel, because of course they saw her salaries with the partnership, and as she had moved of her own volition to better herself, so they could reasonably draw the inference that her salary was going to increase. But one needs not only to look at her ability to pay but look at the reasonableness of the costs which are being sought and perhaps through no fault of anyone's part it has come to light during the hearing before us that in fact by a letter of the 6 July 1990, Mr Stratford, the solicitor for the partnership sent a bill of costs to the Industrial Tribunal and those instructed by Mrs Reddel received merely a note indicating that such a Bill was being sought. It was received, probably the day before the Decision or the meeting for the Decision which was on the 10 July, as a result of which Mrs Reddel's advisors had no opportunity to look at the Bill of Costs and to make observations upon it or to argue that matter.Of course, procedure is a question for the Tribunal itself and with the best will in the world this Tribunal decided to deal with the issue of costs without asking either side to be present merely on the face of the two letters, but this case does indicate the problems that can arise if one does not have an oral hearing on an issue such as this on which no doubt feelings can rise high. The point is taken by us, but is adopted by Mr Bedeau that here the question of the means and the question of amount were not fully investigated by the Industrial Tribunal and he asks us to remit the matter so that those facts can be considered afresh with argument from each side.Mr Stratford has been most helpful and explained how those matters came about, there is no criticism intended of anyone whatsoever, but it does seem to us here, that in order to do that which is fair, just and reasonable between the parties that the fairest course is that the issue of quantum, how much the costs should be should be, remitted to the same Industrial Tribunal for reconsideration and that both parties should have an opportunity to argue not only the amount of costs but the ability of Mrs Reddel to pay those costs. The result may be the same.In the circumstances therefore, the Appeal will be allowed limited to that point, but not on the exercise of the discretion to make an Order for costs.