Mansfield v Leeds City Council [1995] UKEAT 24_94_0111

EAT
Mansfield v Leeds City Council
[1995] UKEAT 24_94_0111 · 1995-11-01
MR JUSTICE MUMMERY (PRESIDENT): This is a meeting for directions concerning documents in relation to an appeal brought by Mrs Elizabeth Mansfield against the decision of the Industrial Tribunal held at Leeds on 28 October 1993. Mrs Mansfield is an employee of the Leeds City Council, the Respondents to the application. On 11 May 1993, she complained in an originating application presented to the Industrial Tribunal, that she had suffered sex discrimination at the hands of the Council, by whom she had been employed since December 1991.Her case was that on 11 March 1993 she became aware that she and two male colleagues were the only applicants for a post. She was told that the two males would be shortlisted, but not her. She requested that the interviews and appointment be frozen, in accordance with internal procedures, but that was ignored. She learned that one of the male applicants was opting for early retirement and therefore there was no point in his being interviewed. That left only the other male applicant. No equal opportunity was afforded to her. He was appointed: her promotional prospects were denied. She gave further details of the alleged discrimination.The Industrial Tribunal heard the complaint on 28 October 1993. Mrs Mansfield conducted her case in person. In the full reasons notified to the parties on 16 November 1993, the Tribunal unanimously decided that the application failed and it was dismissed. The Tribunal, in the full reasons, explained how the application was for direct discrimination contrary to Section 1(1)(a) of the Sex Discrimination Act 1975 . They explained the background to the claim which arose out of the Council's decision to restructure Mrs Mansfield's department in 1992. The essence of her complaint was that she had been denied the opportunity, on more than one occasion, of applying for a post suitable for her qualifications, ability and experience, and that the Council had thereby contravened the Act and their own equal opportunities code of practice and policies.The Tribunal dealt with the facts in detail. It is unnecessary for the purposes of this meeting for directions to examine those. The conclusion of the Tribunal on the facts was that they were satisfied that there had been no direct discrimination as complained. They were satisfied that the same principles, rules and procedures applied to all employees, whatever their sex, and therefore the case under Section 1(1)(a) failed. The Tribunal also observed, in the final paragraph of the decision, that the restructuring plan was carried out with the full agreement of the Unions concerned. Mrs Mansfield was dissatisfied with that decision and she made an application for a review. This application was in a letter signed by her and her husband, Mr William Mansfield, dated 18 November 1993. The letter acknowledged the receipt of the decision and said that the content was unfair and distressing. The letter stated:
"... we wish to have on record our request for a review of the decision on two counts:
i) documents were referred to by the Respondents [the Council] which were not produced at the hearing. We have requested verbally, once at the hearing and again 2 weeks ago, that copies of the VER should be sent to us. [The VER document is one that relates to voluntary retirement.] As they have not arrived we have formally written today requesting again that these documents be produced as it is our submission that claims made at the hearing by the Respondents were not in accord with the terms of VER and this would have a direct bearing on the decision."They made a second point, that the decision was not in the interests of justice and had far reaching implications for all employees of the Council. They concluded:
"In making this application for a Review we wish to advise the Tribunal that we have requested Leeds City Council to provide the documents within 7 days. Failure by the Respondent to comply with our request will necessitate the Court seeking the documents in the interests of justice.

We trust you will grant this request for a review..."

On 29 November the Chairman of the Industrial Tribunal sent to the parties his decision on the application for review. He refused the application on the grounds that it had no reasonable prospects of success. The reasons for the refusal were: that the application had been heard by the Tribunal and the application dismissed; and that the interests of justice did not require a review and that there were no other grounds under Rule 10 of The Industrial Tribunals Rules of Procedure to justify a review.Mrs Mansfield also appealed to this Tribunal in a Notice of Appeal served in December 1993. The grounds of appeal include a complaint that the Industrial Tribunal erred in law in refusing requests for document orders, thereby denying her the opportunity to refute the Council's claims. She said that claims were made by the Council which new documentary evidence could refute. This new documentary evidence would irrefutably deny the Council's claim that banding restrictions were Council policy and practice, when in fact it was not policy or practice. In denying her a review, the Tribunal had denied her justice and the Tribunal had denied themselves the opportunity of seeing vital and important evidence which should have been considered. Coupled with that was a complaint by Mrs Mansfield that the Council had given her a copy of a copious bundle of documents for the Tribunal hearing, only one working day before the hearing, despite earlier requests for the documents. That had denied her the opportunity of getting Union guidance on them and had denied her the opportunity of scrutinising the contents of the bundle in order to refute claims at the hearing.The appeal came before the Employment Appeal Tribunal on a Preliminary Hearing on 18 May 1994. The Tribunal directed that the appeal should be allowed to proceed to a full hearing; ordered production of the Chairman's Notes of Evidence and also directed that documentary evidence not before the Industrial Tribunal, should be exhibited to a sworn Affidavit. That Affidavit was to be filed within 42 days of 18 May. That order relates to the documents Mrs Mansfield was complaining she had not been given. The Tribunal had not ordered the production of them on the application for review. No Affidavit has been sworn. It is clear, from the context on which the order was made, that the Affidavit was to be made by Mrs Mansfield. It has been explained by Mr Myerson, on her behalf, that she was not able to make an Affidavit in relation to documents which she did not have. The documents which she did not have were those which she complained the Council had not produced. Those documents are identified in the letter of 23 November 1994, which has been treated by this Tribunal as an application for discovery against the Council. That letter identifies the documents of which disclosure is sought as follows:
"1. The Minutes of meetings between Leeds City Council union representatives and management relating to the alleged agreement and implementation of "banding arrangements" with regard to staff employment and reorganisation within the Environmental Department of the City Council. In addition to this there should be Minutes relating to this agreement from the Personnel Committee, Disabilities Committee and Equal Opportunity Committee within the City Council and there should be a written and signed agreement between management and unions if the system of "banding" was officially introduced as Council Policy."
Secondly, they want sight of the voluntary retirement document, referred to as VER. The letter explains why it is considered by Mrs Mansfield's solicitors that these documents are relevant. Detailed submissions are made in respect of both the Minutes and the VER document. It is not necessary to repeat those details here. The letter concludes by saying:
"The Chairman of the Industrial Tribunal in Leeds previously refused to grant Orders for Discovery of the above documents, believing the same to be irrelevant to our Client's claim. In doing so, our Client believes that she was refused the opportunity to refute the misleading claims being made by the Respondent regarding the policies and practice of Leeds City Council."
The refusal of Orders for Discovery mentioned there, are not refusals before or at the hearing of the complaint by the Industrial Tribunal on 28 October 1993. Those are references to the subsequent refusal to make the orders on the application for review. The letter finishes by saying:
"In the light of the above, we should be obliged if you would consider making an Order for Discovery of these documents. We might add that without discovery of these documents it will prove extremely difficult for our Client to progress her Appeal."
The City Council responded to that letter on 19 December. The letter was written by the Legal Services Department of the Council to the E.A.T. identifying the documents which they understood were requested by way of discovery. They stated, in relation to each item, their reasons why those documents were not considered to be relevant. The letter concluded by saying that the application for discovery should be refused.The question for today is whether these documents should be produced by the Council for the purposes of the full hearing of the appeal. Mr Myerson, on behalf of Mrs Mansfield, has put forward a clear, concise argument, saying everything that could possibly be said on this application. He submitted, first, that the documents were relevant to the issues between the parties. Logically that is the starting point. If the documents are not relevant, there can be no basis for ordering their discovery. He says they are relevant because the Council's case in the Industrial Tribunal was that the rules governing applications within the restructuring were agreed with the unions, and that the Council's code of practice is set aside when restructuring is being considered: oral evidence was given to that effect. No documentation was produced by the Council to support those claims, even though Mrs Mansfield challenged those contentions. The Council's case was that the posts of those taking early retirement were deleted or filled by someone on the redeployment list. Mrs Mansfield made it clear that she expected to be considered for Mr Kemp's post after he took early retirement. The Code of Practice, which was produced, dealt with what is described as ring-fencing, in terms that did not accord with evidence given on behalf of the Council. The specific section dealing with recruitment procedure for restructuring had not been drafted at the material time.Mr Myerson pointed out that the Tribunal had held that the restructuring plan may have been applied unfairly to Mrs Mansfield, but the plan was carried out with union agreement. He submitted that it should have been clear to the Tribunal that Mrs Mansfield's case rested in large part on the proposition that the restructuring plan had not been agreed with the unions. It was open to the Tribunal to order the Council to particularise its case and, of its own motion, to make an order for particulars, discovery and inspection. Mr Myerson referred to the provisions in Rule 4 of the 1985 Rules of Procedure then in force. He reinforced the argument that the Tribunal should have acted on its own motion by reference to the fact that Mrs Mansfield was acting in person. It was the duty of the Tribunal to ensure that her case was not prejudiced by her failure, as a litigant in person, to appreciate the finer points of procedure. If she had asked for the documents at the hearing, that application would have been granted. He referred to the application for review and said that the Tribunal were made aware that they wanted to see these documents. These documents went to the heart of her case. It was in the interests of justice that a review should have been granted requiring production of these documents. Under the Rules of Procedure Rule 10 a Tribunal has power to review and revoke any decision on the ground that the interests of justice require such a review. He conceded that, although the power to review in the interests of justice should not normally be used to circumvent the specific power to review under Rule 10(1)(d), which refers to new evidence being available, but contended that this is an exceptional case, because it was clear throughout that the documentation sought would assist the Tribunal in reaching its decision. The Tribunal should also have considered the fact of Mrs Mansfield representing herself.Mr Myerson reminded me of the words of the power of review in the interests of justice. He submitted that, without the discovery of these documents, the appeal was unlikely to succeed. It was her case to us that the Council had failed to comply with its own code. The Council's case on restructuring set out the system which was adopted. It should have been apparent to the Council and the Tribunal that documentary proof of the adoption and implementation of that system ought to have been disclosed. It was wrong for the Council to rely on Mrs Mansfield's failure to request discovery. He reinforced the point by saying that she had only a limited time to consider those documents produced in the bundle the day before the hearing.I raised with Mr Myerson, at an early stage, the need to clarify the basis upon which this application is made. This is not the hearing of the appeal against the original decision or the review decision. I agree with Mr Bowers, who appeared for the Council, that this is not an application under Rule 27 of the Employment Appeal Tribunal Rules , which confers on the Tribunal power to order any person to attend before this Tribunal as a witness or to produce any documents. That rule is directed to powers in the nature of a subpoena to persons who are not parties to assist the Tribunal in the resolution of the appeal. In effect, this application is an application for leave to adduce new evidence, which is not in the possession of the Appellant. The new evidence consists of the documents in the possession of the Council, as identified in the letter written by Mrs Mansfield's solicitors on 23 November 1994.Once the application is seen in that way, it is doomed to failure, because this Tribunal, in relation to new evidence on an appeal, follows the test laid down by Lord Denning in the Court of Appeal in Ladd v Marshall [1954] 1 W.L.R.1489 . Lord Denning's test contains three conditions which have to be satisfied before evidence can be received on an appeal, which was not put before the Court or Tribunal, which tried the case. The first of those conditions is: that it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial. This application fails on the first condition. It cannot be said by Mrs Mansfield that the documents, sought in her solicitor's letter of 23 November 1994, could not have been obtained with reasonable diligence for use at the Tribunal. They could have been obtained by making an application before the hearing for such an order, if these documents were relevant. They could have been obtained by Mrs Mansfield making an application at the start of the hearing on 28 October 1993, by which time she had received the Council's bundle of documents and saw that these documents were not in it. She could have asked for an adjournment in order to consider the contents of the bundle and then made an application, before the adjourned hearing, for these documents to be produced.For those reasons alone, it is not permissible for this Appeal Tribunal to order the production of these documents, even making all the allowances that this Tribunal and other Tribunals make for the fact that litigants in person are under the disadvantage of lack of legal training and experience. The help which a Tribunal can give to a litigant in person is limited. It is not proper for the Industrial Tribunal at the original hearing or on a review, or for this Appeal Tribunal on an appeal, to seek to act for a party or to represent a party, who is unrepresented. That is impossible for a Tribunal which has to adjudicate on the dispute.In opposing the application, Mr Bowers made a number of points: he said that there was no error of law in the decision of the Industrial Tribunal in relation to these documents, because no request for discovery of them had been made before or at the hearing. There was no error of law in the review decision. The Chairman had correctly refused to review in relation to the request for production of these documents. He pointed out that the review powers of the Tribunal under Regulation 10(1) contain similar restrictions on new evidence on a review as those in Ladd v Marshall in relation to new evidence on an appeal. What was being attempted, Mr Bowers said, was to circumvent the restrictions on new evidence in ground (d) of Regulation 10(1) by bringing the case under 10(1)(e). As a ground of review 10(1)(d) concerns new evidence which has become available since the conclusion of the hearing, provided that its existence could not have been reasonably known of or foreseen. The documentary evidence here was evidence whose existence could have been reasonably known of at the time. It therefore did not come within that review ground. The attempt to seek a review on the interests of justice was nothing less than an attempt to circumvent the restrictions on new evidence in the previous sub paragraph.Most important of all, Mr Bowers submitted, that the Council's position was that none of the documents were relevant to the sex discrimination claim brought by Mrs Mansfield. The agreement with the union, for example, and the voluntary retirement agreement, were not relevant to the complaint made. This was not a case of unfair dismissal. This was solely a case of sex discrimination, in which the issue before the Tribunal was a narrow issue: whether Mrs Mansfield had been treated less favourably than a man was, or would have been, treated. Mr Bowers also made a point on some of the imputations against the Council. He denied that there had been any improper selection in the disclosure of documents. He pointed out that there was no general duty to give discovery. The reason these documents had not been produced was that they were not relevant. There had been no selection in the disclosure of documents so as to misrepresent to the Tribunal evidence given by witnesses for the Council. He emphasised the general public interest that there is in finality in litigation. If one is considering the interests of justice in relation to a review or an application for new evidence, there are two sides to justice. There is not only the grievance of the Appellant that the case was decided without seeing all the evidence. There is also the interest of the Respondent in seeing that a case, which has been argued and decided, should be an end of the matter and not, save in the case of an appeal, open to further trials on the basis of evidence that could have been brought forward but was not. I agreeFor all those reasons I refuse the application for the discovery of these documents. I should mention for completeness that Mr Bowers responded to the criticism in the Notice of Appeal, of late delivery of a bundle of documents by the Council to Mrs Mansfield. He has produced correspondence which indicates certain difficulties that the Council's Legal Services Department had in dealing with the preparations for the hearing, and in their communications with Mrs Mansfield. I will not go into the details of those. I am satisfied by the documents I have seen there that there is no legitimate criticism of the Council in relation to the delivery of the bundle of documents the day before the hearing.The application is refused. I would add this. In the course of the Appeal, there was a discussion between myself, Mr Bowers and Mr Myerson, on an aspect of the appeal raised by me. What I say now is not intended to be binding on anybody, or on the Tribunal which hears the appeal. I pointed out to Mr Bowers that it was open to his clients to give voluntary disclosure of these documents, if they wished to do so, without in any way prejudicing their legal position on the appeal. They could give voluntary disclosure, in order to allay the suspicions of Mrs Mansfield and her husband about the matter. They think that the documents are relevant. They think that the documents may have helped them to win a case which Mrs Mansfield lost. If the Council were willing to give voluntary disclosure, (and I am not indicating that there is any pressure on them to do so) I make it clear that I would be willing to impose conditions on Mr & Mrs Mansfield, in relation to any documents so disclosed. Those conditions would include the giving of undertakings by them to this Tribunal, that they would not use any documents disclosed to them for any purpose outside these proceedings and, within these proceedings, they would undertake not to use these documents, save with the leave of the Tribunal. The leave of the Tribunal would be governed by the same considerations as if these documents had not been voluntarily disclosed. That means, for example, that the Council's position would be entirely protected in relation to their arguments as to:(1) The relevance of the documents - (they say they are irrelevant).(2) Whether it is legitimate for this Tribunal to look at documents which do not satisfy the requirements of Ladd v Marshall .The purpose of any undertakings required from Mr & Mrs Mansfield would be this: that the Council should not prejudice their legal position on the appeal by the act of voluntary disclosure. There is, however, no pressure or obligation imposed by the Tribunal on the Council to make disclosure of these documents. It is entirely a matter for them.