Morris v Zoom Photographic Ltd [1994] UKEAT 529_94_1710

EAT
Morris v Zoom Photographic Ltd
[1994] UKEAT 529_94_1710 · 1994-10-17

JUDGE HULL QC :

Mrs Morris was first employed by the Respondent as a junior darkroom technician on 2 September 1992, at a salary of £7,000 pa. Later her salary was increased to £8,000 pa. She was married on 10 June 1993 and shortly after her return from her honeymoon, on 24 June, she was dismissed. She complained to the Industrial Tribunal on 21 September that she had been discriminated against on the grounds of sex and/or marriage, relying of course on the provisions of the Sex Discrimination Act 1975.The Respondent, through its managing director Mr Dunbar, sent a Notice of Appearance denying discrimination on 29 September. Mr Dunbar averred that Mrs Morris was dismissed because of her inefficiency; a temporary employed while Mrs Morris was absent on her honeymoon was "10 times quicker".Mrs Morris was represented by Dr Skyte of the Manufacturing, Science and Finance Union. He had a meeting with Mr Dunbar and Mrs Morris with a view to her re-engagement, but this unhappily did not bear fruit; Mrs Morris was given a "print test" but she was, in the view of Mr Dunbar, unsuccessful in showing that she could increase her productivity. The application to the Industrial Tribunal therefore continued.Dr Skyte caused a questionnaire to be submitted to the Respondents under section 74 of the Act. Questions were asked about the gender and marital status of the Respondents' staff and in particular about Mrs Morris' replacement. Mr Dunbar replied in some detail on 9 November. Dr Skyte was not satisfied. He applied to Mr Dunbar on 24 November for Discovery and comprehensive Further and Better Particulars of the Notice of Appearance. On 24 January 1994, on Dr Skyte's application, the Industrial Tribunal made Orders for the Discovery and Further Particulars which had been sought.On 27 January the Respondent's solicitors, complaining that the requests were oppressive or unnecessary, applied to the Industrial Tribunal for the discharge of the Orders. Dr Skyte refused to consent and the Industrial Tribunal accordingly, on 28 March, ordered that there should be an interlocutory hearing on 27 April 1994, to consider the Orders and give any necessary directions. The first object of the hearing was said to be to "(a) Clarify the issues..."On 13 April the Respondent's solicitors applied by letter to the Industrial Tribunal, with notice to Dr Skyte, for the Industrial Tribunal to consider ordering a deposit of £150 by Mrs Morris as a condition of continuing the proceedings, under Rule 7(4) of the Rules of Procedure in Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 ("The Rules"). The Industrial Tribunal replied on 15 April that the hearing on 27 April was an interlocutory hearing and not a pre-hearing review; therefore the Chairman would have no power to order a payment of deposit. On 19 April the Respondent's solicitors replied that they could see no reason why the Industrial Tribunal should not hold a pre-hearing review at the same time as it considered interlocutory matters, and requested such a pre-hearing review.This second request was acceded to. On 25 April, a Monday, the Industrial Tribunal informed the parties that a pre-hearing review would be held at the same appointment as that for the interlocutory hearing on Wednesday 27 April. Dr Skyte was busy on the Monday and Tuesday, but he sent a letter on Monday asking for any pre-hearing review to be postponed, complaining of short notice and insufficient time to prepare a case for the review because he would be out of his office till then. This application was faxed to the Industrial Tribunal and refused the same day (Monday).Dr Skyte duly appeared before the Chairman of Industrial Tribunals, Mr Waud, on 27 April. The pre-hearing review was dealt with first. Dr Skyte applied for an adjournment. The Chairman apparently said that he would deal with that later. The notes of Dr Skyte's submissions to the Chairman are transcribed at pages 70A and 71A of the exhibits to his affidavit. Having heard Dr Skyte, the Chairman made an Order reciting that he considered that Mrs Morris' contentions had no reasonable prospect of success, and that no matter was put forward to show that her treatment had been less favourable than that given to a man or a single person; nor was there any foundation for a case of indirect discrimination. Dr Skyte had informed the Industrial Tribunal that Mrs Morris was in new employment earning £17,000 pa. The Industrial Tribunal therefore ordered her to pay a deposit of £150 not later than 17 May as a condition of being permitted to take part in the proceedings.With regard to the application for an adjournment, the Industrial Tribunal observed that the interlocutory hearing had been fixed for the day, to clarify issues. Dr Skyte had acted throughout. If he were unable "to show some sort of case at this stage", then a further adjournment would not help him.Mrs Morris simply failed to pay the deposit of £150. We asked her counsel, Mr Lewis, what the explanation for this failure was and whether Mrs Morris had been advised by Dr Skyte or anyone else in MSF about the need to make the payment. Mr Lewis took instructions but was unable to reply to our questions.On 10 May Dr Skyte applied for a review of the Order of 27 April pursuant to Rule 11(1)(e) of the Rules. He complained that there had been insufficient notice of the pre-hearing review. He claimed that he had put forward evidence showing that Mrs Morris' treatment was less favourable than that given to a single person. He stated that he had been unable to produce copies of the answers to the questionnaire under section 74 of the Act because of the late notice of the pre-hearing review. The Industrial Tribunal replied that there was no power under the rules to review the Order of 27 April and on 3 June made an Order that Mrs Morris' originating application be struck out under Rule 7(7)(a) on the ground that she had failed to deposit the £150.Mrs Morris appeals to us against the Order made on 27 April and against the refusal of the Industrial Tribunal to review that Order. The substance of the first part of her appeal is that Dr Skyte received too little notice of the pre-hearing review to enable him to deal with that matter properly.Under Rule 7(3) of the Rules, a pre-hearing review shall not take place unless the secretary (of the Office of The Tribunals) has sent notice to the parties giving them an opportunity to submit representations in writing and to advance oral argument at the review if they so wish. Under Rule 20, the notice is to be in writing; but neither there nor elsewhere in the Rules is there any provision for the length of notice to be given under Rule 7(3). Mr Lewis pointed out that under Rule 5(2), 14 days' notice was required for the hearing of an Originating Application, in the absence of agreement between the parties and the secretary.We can of course only entertain an appeal on a question of law. Accordingly, the first question which we must consider is whether notice which was sent in writing to the parties on 25 April (and received by them then) is as a matter of law so short that it must be unlawful notice of the pre-hearing review of 27 AprilIn our judgment this notice was not so belated that it can be described as unlawful. Clearly any such notice must be long enough to give the parties "an opportunity to submit representations in writing and to advance oral argument at the review if they so wish" as provided by Rule 7(3). Clearly notice of 48 hours or less is likely to be inconveniently short for any party who has other urgent matters to attend to. If an adjournment is sought, it will be necessary for the Industrial Tribunal to consider whether the parties have indeed had a proper opportunity to submit representations or prepare oral argument, and to exercise its discretion in order to ensure fairness. But in our judgment, none of those considerations means that such short notice is of itself inherently and necessarily unlawful.Given that the notice was not unlawful, it was a matter for the Chairman to decide whether, as a matter of discretion, to accede to the application for an adjournment. We can interfere with the exercise of such a discretion only in exceptional circumstances, if it is clear that its exercise involves an error of law or irrationality in the legal sense, or if the Chairman has taken into consideration something manifestly irrelevant or ignored something obviously relevant.In the present case Dr Skyte was in any event attending before the Chairman on 27 April, for the purpose of upholding an Order for substantial Further Particulars and Discovery. For nearly a month he had been well aware that the Industrial Tribunal intended to make use of the hearing to clarify the issues in the case, consider how long the case was likely to last and give any directions which might be necessary for the fair and expeditious disposal of the case. We were told that Dr Skyte had indeed prepared his submissions for these purposes. In those circumstances he must have been very well aware of the general nature of his case, and the basis on which the serious allegation of sexual discrimination was made. If a suggestion were made that his case had no real prospect of success (and he had 2 days' notice that just such a suggestion was to be made) then he should have had not the slightest difficulty in rebutting it, if he had in fact any case at all. Instead, as the Chairman observed:
"1. No matter is put forward which shows that her treatment was less favourable than that given to a man or a single person. The substance of the complaint is that the Respondent are bad employers.
2. It is agreed that the workforce consisted of about 10 staff, some of whom were married, some women and one from an ethnic minority. If the Respondent discriminated against women and married persons, it is hardly likely that a considerable proportion consist of women or married persons.3. Dr Skyte cannot produce, and has made no enquiries, about the respective proportions of men/women or married/unmarried persons so as to found a case of indirect discrimination. He merely says that there must have been such discrimination."and he concluded his reasons:
"4. I refused an application for an adjournment by Dr Skyte. He says that he has not had time to get his case together to resist the application. An Interlocutory Hearing, of which notice was given on 28 March 1994, was fixed for today. That hearing was to clarify issues and inter alia deal with an application made by Dr Skyte for Further Particulars of the Notice of Appearance. Dr Skyte has acted for the Applicant since the case commenced, and is named as the representative on the Originating Application. He is not disadvantaged when notified in writing by a letter dated 25 April 1994 that the present application was to be heard before the Interlocutory Hearing. He knew on the 25 April 1994. If Dr Skyte is unable to show some sort of case at this stage, then a further adjournment would not help him."
We must look at the material on which the Chairman's decision was based. Despite Dr Skyte's statement that he had not had time to get his case together, the transcribed notes of his submissions to which we have referred give a very different impression. It is to be inferred that the Chairman took the view that Dr Skyte was indeed well able to put forward his case, such as it was, and that any difficulty was inherent in the obvious weakness of the case itself.Despite the long interval since the Order of 27 April, Mr Lewis, appearing for Mrs Morris, was quite unable to put forward any material matters which Dr Skyte would have wished to lay before the Industrial Tribunal and failed, through the shortness of the notice, to make the subject of submissions.Dr Skyte made a long Affidavit which we have of course read, with the substantial bundle of exhibits. Among other matters, Dr Skyte deposes to his commitments outside his office on the Monday and Tuesday before the hearing, but he says that he was ready on the previous Friday to deal with the Interlocutory Hearing. He does not explain why it was impossible for him to return to his office and prepare a proper submission during the evening of the Monday or Tuesday, or perhaps early in the morning. People who practice the profession of advocacy cannot expect to complete all their tasks within office hours. In addition, he describes a rather rough passage at the hearing before the Chairman, following his own behaviour in keeping the Industrial Tribunal waiting. The Chairman rebuked him for not producing the answers to the questionnaire served under the Act; there really seems no excuse for that failure. Dr Skyte says that his attempt to present his case was ragged and disjointed.It appears to us that there was plenty of material on which the Chairman, who quite rightly heard all that Dr Skyte had to say about his case, was entitled to exercise his discretion to refuse an adjournment. Among many other considerations, the Order which was sought by Mr Dunbar was not a peremptory strike-out or anything of that sort, but merely that Mrs Morris, having apparently nothing better than a speculative case against a small business, should pay a deposit of £150, returnable in the event of success and very possibly in the event of failure - see Rule 7(8). To find such a sum from a salary of £17,000 pa might be thought a mere fleabite. The Chairman may also have noted Dr Skyte's evident determination to deploy those potent engines of delay and expense, requests for Further and Better Particulars of a comprehensive sort and an application for discovery of documents, even after receipt of the answers to his questionnaire (which, as we have noted, he did not produce to the Industrial Tribunal).We are unable to detect any error of law in the Chairman's exercise of his discretion to refuse an adjournment. As the President of the Employment Appeal Tribunal observed in Reddington v Straker & Son Ltd [1994] ICR 172 at 178A, procedure before Industrial Tribunals was intended to be informal, cheap and expeditious and the Rules must be construed with those purposes in mind.We would add the obvious comment that the striking out of Mrs Morris' Originating Application was due to her own conduct in defying (for reasons which have not been explained) the Order made on 27 April, and that (for the reasons conveniently set out in the Respondent's Skeleton Argument) there would appear to be ample justification for the Chairman's view that the Originating Application had no reasonable prospects of success. As stated by paragraph 17 of the Appellant's Skeleton Argument, the merits of the Chairman's reasoning on this matter are not the basis of the appeal.We should also say that nothing in our decision should be taken as general approval of such short notice as was given in this case. Had Dr Skyte not been familiar with the case from its inception, and well prepared for the Interlocutory Hearing on 27 April, it might well have been clear that any exercise of judicial discretion would have compelled the Chairman to grant an adjournment. At the very least, such short notice is, as we have said, likely to cause inconvenience, and Industrial Tribunals should avoid causing inconvenience to parties if they can.Mrs Morris also appeals against the refusal of the Industrial Tribunal to grant her a review of the decision of 27 April. The application is at page 78 of the bundle to which we have referred. It sets out the complaints of Dr Skyte to which we have referred. Essentially, nothing new was said, although 3 alleged errors by the Chairman were set out. The application was expressed to be under Rule 11(1)(e) of the Rules, on the grounds that the interests of justice required such a review.The application was rejected (page 83 of the bundle) on 3 June on the grounds that the Chairman had no power to grant a review. It would appear that this decision was taken on the basis of the mandatory provisions for striking out in Rule 7(7), and indeed the striking-out order was itself dated 3 June. However that may be, it appears to us that the application for a review under Rule 11 was in any event incompetent. The power under Rule 11 is to review any "decision". Under the definition in regulation 2 of the Regulations, "decision", with exceptions which do not apply to the present case, does not include an Interlocutory Order. The Order of 27 April was, in our view, quite unarguably an Interlocutory Order.That is not quite the end of the matter. It would be an absurd situation if Rule 11 permitted the review of final orders, but the Industrial Tribunal were without power to reconsider interlocutory orders, which are in their nature subject to reconsideration if new matters arise. In our view it is well settled that an Industrial Tribunal can reconsider its own interlocutory orders, not by review under Rule 11 but under its general powers conferred by Rule 13, or by reason of the very nature of such orders. We were referred to Reddington v Straker & Sons Ltd [1994] ICR 172 and Charman v Palmers Scaffolding Ltd [1979] ICR 335, both of which appear to support our view of the Industrial Tribunal's general powers.It is unnecessary for us to consider whether a proper and timeous application made to the Chairman to reconsider the Order of 27 April might have succeeded, or even whether such an application might still succeed. We were certainly not shown any grounds on which it appeared to us that such an application might succeed or might have succeeded. We simplysay that the appeal against the Industrial Tribunal's refusal to review its Order of 27 April is unfounded and must be dismissed.