Durant v Thorne Poultry Ltd [1994] UKEAT 986_93_2102

EAT

Durant v Thorne Poultry Ltd

[1994] UKEAT 986_93_2102 · 1994-02-21

MR JUSTICE MUMMERY (PRESIDENT): This is an appeal against the decision of the Chairman of the Industrial Tribunal sitting at Sheffield on an interlocutory application relating to Further and Better Particulars in proceedings complaining of sex discrimination.

The Chairman dealt with an application for particulars requested by the complainant's solicitors in a letter of 16th September 1993. He refused the application stating simply:

"The information requested does not appear to be necessary for the resolution of this case and the question would be unduly onerous for the respondents to answer."

The complainant's solicitors wrote on the 18th October 1993, further to his decision, requesting under Rule 9 of the Industrial Tribunals (Rules of Procedure) Regulations 1985, full written reasons for the decision to be forwarded at the earliest opportunity.

The reply from the Office of the Industrial Tribunal at Sheffield was:

"Your letter of 18 October 1993 has been referred to a Chairman who has asked me to say to you:

`It is not the practice to give reasons for interlocutory orders which are not decisions within the meaning of the Regulations.'"

The complainant, Mrs Durant, was dissatisfied with the way in which the application had been dealt with. By Notice of Appeal dated 19th November 1993, she appealed on the grounds that the Chairman had erred in law in refusing the application on the grounds stated. The grounds of the appeal were that the Chairman wrongly exercised his discretion, that his decision was perverse in the sense that no reasonable Chairman could have reached the decision declining to order the Particulars, and that as added by way of amendment pursuant to leave granted at the beginning of this hearing, the Chairman erred in law in failing or refusing to give adequate reasons for his decision.

The background to the claim by Mrs Durant is that she was taken on in the employment of the Respondents, Thorne Poultry Limited, as a production operative, on the 7th September 1992. On the 11th February 1993 she informed her employers that she was pregnant. From the 17th February 1993 until the 26th April 1993 she was absent from work. On the 26th April 1993 she was summarily dismissed. The reason given for her dismissal was absence due to ill health.

Mrs Durant's case is that throughout the period of her absence she was covered by sick notes by her GP to the effect that the absence was due to pregnancy related illness. Mrs Durant complained by her Notice of Application, presented on the 28th June 1993, that her employers had unlawfully discriminated against her on the ground of sex.

The issues in the case became clearer when the employers put in a Notice of Appearance, dated 26th July 1993. The case of Thorne Poultry was that Mrs Durant was unable to attend work, by reason of illness, during the period mentioned in her complaint. She was seen on the 6th April and asked when she anticipated being able to return to work. She indicated that she would be able to return on the 13th April. That was acceptable to the employers. But she did not return then. She was asked to see the Personnel Officer and Factory Manager on the 26th April. She was asked again if she would be able to return to work within the next few weeks, but she was not able to give any indication of when she would return to work.

In those circumstances, the employers contend that their requirements for the appropriate number of staff to ensure full production meant that they were required to replace her, and accordingly, terminate her employment. At the date of the termination of employment she had been absent from work for a continuous period of just under 10 weeks.

In paragraph 5 of the employer's case it was stated:

"The Respondent denies that it was guilty of unlawful discrimination. Comparable male employees absent for similar periods (after allowance had been made for their respective length of service) were also dismissed in April and June 1993."

The employers conclude their case by stating that they will contend that the reason for dismissal was incapability of Mrs Durant to carry out her duties and the need for her to be replaced. It is denied that her sex or pregnancy, as opposed to the consequences of her pregnancy, were relevant factors.

It is necessary to state those details of each case in order to understand the request for Further and Better Particulars.

Under the Industrial Tribunal (Rules of Procedure) Regulations 1985 then in force, there is power to require a party to furnish in writing Further Particulars of the grounds on which that party relies or of any facts or contentions relevant thereto. In deciding whether to exercise that power the tribunal will normally act in accordance with the general principles governing the furnishing of Further and Better Particulars in pleadings generally, ie to ensure that the parties are not taken by surprise at the last minute and that the Particulars are necessary to define the issues, to do justice in the case and to prevent unnecessary adjournments. The practice will also be governed by the general consideration that an order should not be oppressive and should be exercised for the purpose of identifying issues, not for the purposes of compelling the other side to produce evidence.

With those principles in mind we turn to the letter of 16th September 1993 which contains the request for further information. The letter was sent by Mrs Durant's solicitors to the employers' solicitors. During the course of the hearing most of the points raised in that letter have been dealt with by agreement. In some cases the information was supplied by the employers' solicitors in their response of the 29th September 1993. In other cases the information was provided just before this hearing. Some points were agreed during the course of submissions. It is unnecessary, in those circumstances, to go through every paragraph of the letter. As Miss Rose said, on behalf of Mrs Durant, there are now only three points left on which we are required to give a decision.

We will give our decision prefaced by a number of general points. The first is that this Tribunal is concerned that it has taken 2 1 / 2 hours of argument this morning, preceded by many months since this request was made, for it to become apparent that there was a great deal of common ground. Time and costs would have been saved if there had been more communication between the parties' advisers before the hearing this morning, to establish the points on which there was a serious disagreement of view. It is not a productive use of parties' time or the Tribunal's time to negotiate and concede points during the course of submissions.

Secondly, it is our view that there would have been a better prospect of compliance with the request if it had been presented in a different form. As is recognised by Miss Rose in her submissions some of the items requested are unnecessarily wide. That is, perhaps, one of the reasons for blanket responses in the letter of the 29th September to certain items:

"This is a matter of evidence"

It might also have prevented the blanket response of the Chairman to the application in simply refusing it on the grounds that the information was not necessary and that it would be unduly onerous to require the employers to provide it.

For future guidance we suggest that when requests are made for Particulars more careful thought is given to what Particulars are actually needed and to confining the request to those. It would be preferable if the form of the request were changed to a covering letter to which there is attached a schedule listing each individual item on which Further Particulars are requested and stating in respect of that item the reason why it is required. If a reason is stated for requiring the information it is more likely to be given either on request or on an order of the Chairman if it is a good reason. If no reasons are given there is an increased risk that the application will not be as seriously and carefully entertained as it deserves.

There are three items which are remaining for decision. First, in paragraph 3, of the letter of 16th September, the request is:

"Details of any warnings, verbal or written, about the applicants work performance in the job."

It was contended by the employers that these Particulars should not be ordered. They were of a fishing kind and not relevant to the complaint of sex discrimination. We do not agree There is an issue between the parties as to the reason for Mrs Durant's dismissal. She says it was on grounds of sex. The employers say it was on grounds of her incapability to carry out duties. In our view, it would be relevant to know in dealing with that issue, as to the reason, whether the employers say that there had been any verbal or written warnings about her performance in the job. Her performance in the job is clearly relevant to the allegation of the employers that she was incapable of carrying out her work duties.

We will, accordingly, make an order that Thorne Poultry Limited provide to Mrs Durant details of any warnings verbal or written about the Applicant's work performance in the job. We will hear submissions at the end of this judgment as to the time that should be allowed for the provision of those Particulars and the other Particulars we propose to order.

The second area of dispute arises from the request in paragraph 8:

"Please provide details of employees (specifying their sex) who have been away from work because of illness or for other reasons for periods of more than one month during the past two years."

The response of the employers to that request was:

"Periods of absence from work of one month are not relevant. The Respondents case, clearly, is that the Applicant was dismissed after a period of absence from work for a continuous period of just under 10 weeks."

Mr Grazin, for the employers submitted, that there was no power to make an order for that information which did not appear to relate to any particular issue in the case. It did not come within the definition of Particulars which the Tribunal could order. He also objected to the periods of one month which was enlarged to six weeks by Miss Rose in her submissions for Mrs Durant and to the two year period over which it was sought to obtain those details.

We are against Mr Grazin on this point, though we recognise the force of the submission as regards the relevant periods. In principle it is relevant to an issue in the case, the issue of sex discrimination, and the reason given by the employers for the dismissal, to consider the case of employees, whether they be men or women, who were absent from work because of illness without being dismissed. We are, however, with Mr Grazin in his criticism that this is a request for more details than are necessary for the resolution of the issue. This request should have been confined to details of employees who have been ill, away from work, for periods comparable to the periods that Mrs Durant was away from work before she was dismissed. We will, accordingly, confine our order to providing details of employees, men or women, who have been away from work because of illness for periods of eight weeks or more. The details should give a breakdown of the details for men and for women and there should also be provided details of the length of service of each relevant employee.

As to the two year period there are difficulties as to what period the two years should cover, whether it should be back from the date of dismissal to an earlier date, or whether it should be back from the date of request to an earlier date, or back from the date of the order today to an earlier date. There is bound to be an element of arbitrariness in this. We have to take into account the extent to which this may be onerous on the employers. We have to take into account, to some extent, the likelihood that records may not have been kept for any long period after the employees have been dismissed. We propose to order these details to be provided in respect of the calendar years 1992 and 1993. We have observed from what documents have been produced by the employers this morning that the details of the employees are provided on a calendar year basis. It may be easier for the work that has to be done to comply with this request to be done over two calendar years rather than from some other period such as two years before the 26th April

We will, accordingly, make an order under paragraph 8 that details of the employees, men and women, be provided for who have been away from work because of illness for periods of more than eight weeks during 1992 and 1993. There are to be provided also details of length of service of the relevant employees.

As regards Mr Grazin's point that he does not know whether all the records are available, the answer is that the response to the request must be - provide the best Particulars that they are able to give. If documents are no longer available and records have been destroyed the reason for their non-availability can be stated in the Particulars.

The third and final point arises under paragraph 9. The request is by reference to the the IT form at paragraph 5:

"comparable male employees"

The first part of the request is - to specify who these comparators are? That information has already been provided in respect of the four male employees. The second request is in respect of the references to allowances for respective length of service. The request is:

"please clarify what the allowance procedure is and how this is calculated?

In our view, Mrs Durant is entitled to these Particulars. They are Particulars of an allegation which the employers thought it relevant to make. Mr Grazin said there is nothing more to say than has already been said. If that is so, that is his answer to the Particulars. If there is more to be said such as by reference to any employers' internal guidelines as to how allowance is to be given, then Particulars will be given by reference to the details of those guidelines.

It is not a reason for refusing to order Particulars that there may not be more to be said. The response is to say, "We cannot provide any further Particulars".

Those are the three points. We would ask the parties for the assistance of the Tribunal to agree the form of order. It is necessary for avoiding future misunderstandings and confusions that an order be drawn up dealing with all the points, even though they are not points on which we have been required to give a ruling, because they have disappeared by concession or agreement.

There is one further general point, Miss Rose, with the leave of the Tribunal and no opposition from Mr Grazin, added as a ground of appeal that the Chairman had erred in law in failing or refusing to give adequate reasons for his decision.

I have read the form of the request for reasons. On a literal interpretation the Chairman was entitled to decline, since the request was made under a rule which provides only for reasons for the decision of the Tribunal, when what was being sought were reasons for a decision of the Chairman of the Tribunal.

We agree with Miss Rose, however, that without delving into the question of whether there is a general obligation under English law to give reasons for decisions, it is not good practice to refuse to give reasons for a decision. This was an application of a multiple character with 11 different paragraphs itemising the request for Particulars. It is a good discipline for anybody required to make a decision to address separately each point and give, briefly, a reason as to why, or why not, the request is to be granted. It is particularly important that reasons are given when the request is made with a view to a possible appeal. It is difficult to begin to draft grounds of appeal, except on grounds of perversity, unless a short reason is given for the decision. The difficulty in this case is that the Chairman gave an omnibus reason for refusing the Particulars which was applicable to some of the requests but not to others. The matter should be addressed separately on each item. That is the reason why we have suggested that in future requests for Particulars are supported by brief statements of the reasons why the Particulars are requested. The solicitors on the other side can then consider whether it is a good reason or not. If they do not comply with the request the Chairman can then consider whether it is a good reason or not. The difficulty in cases like the present is that there is no procedure like that followed in the High Court where an application of this kind would normally be supported by an affidavit setting out the reasons for the information requested.

We should add that nothing we have said should encourage people to set out requests at inordinate length. Nothing we have said is intended to require chairmen to give formal, detailed reasoned decisions. All that is required in relation to each item requested is a sentence or two stating why or why not the Particulars will be ordered.

For those reasons we will make the order. We ask the parties to agree a form of order covering the items that are dealt with by consent and by our order. The only matter that remains outstanding is to what period should be allowed for the provision of the Particulars.

We will make the order to include employees who have been away from work for 8 weeks or more because of illness or for other reasons between the two calendar years 1992 and 1993.