Willis v Mars Confectionery [1996] UKEAT 902_96_2009

EAT
Willis v Mars Confectionery
[1996] UKEAT 902_96_2009 · 1996-09-20
MR JUSTICE HOLLAND : We have before us an appeal by Miss Debbie Jane Willis against an Interlocutory Order made by the Chairman of the Industrial Tribunal at Reading. The circumstances giving rise to the Order and to the appeal are as follows.By an IT1 dated 15th February 1996, Miss Willis made a complaint against the respondent Mars Confectionery, alleging sex discrimination. In the box on the form requiring her to give details of her complaint, she complained in entirely general terms of direct discrimination, indirect discrimination and victimisation.Understandably, Mars sought further and better particulars of that allegation. The request was drafted by Counsel, and is a comprehensive request drafted with a particularity that is appropriate, certainly to any common law action.That request was not immediately responded to by Miss Willis. The matter then came to the attention of the Chairman.On 9th August 1996 the Chairman made an Interlocutory Order that Miss Willis should supply in writing the further and better particulars of her application in response to that request, that being a request of 13th June 1996.At about that time (and we do not have to be precise) Miss Willis provided to the tribunal a document containing a substantial number of pages. The material part of the document is in our bundle and it extends from pages 2 to 17. Within that section of our bundle and on those pages is a very full statement of Miss Willis's case. Essentially it is her own personal proof of evidence.The statement itself seemingly has the following genesis. It was first put together in about February 1996 for submission to Mars in support of a questionnaire then being tendered to Mars in connection with her complaint of sex discrimination. As put before the Chairman, the pages that we have were accompanied by documents emanating from February 1996 and including the questions that formed part of the original questionnaire. We make these observations as the history, because Miss Willis having put this before the tribunal then made an enquiry of the tribunal as to whether the Chairman had indeed seen the pages of her proof, and she received a letter from the tribunal dated 13th August 1996, which read so far as material as follows:
"Further to your telephone call to this office on 12 August 1996 the Chairman directs me to write to you as follows.
The Chairman does not regard the questionnaire as providing sufficient information. If he had no such order would have been made. The order is based on the request for further particulars which is quite clear and sets out exactly what further information is required."Thus it is that the matter comes before us on an appeal by Miss Willis, and what Miss Willis submits to us in support of her appeal is as follows. She emphasises understandably that she is an unrepresented lay person, and that she does not have professional training. She tells us, and we readily accept, that when her complaint is put before the tribunal on 21st October (that being the fixed date), she alone will be giving evidence on her own behalf. She says that the evidence that she will give is wholly set out in these pages 2 to 17 in our bundle. She says that there is nothing further that she as a lay person can add to the content of that statement.Turning then to the request that has been put before us and which is the basis for the Order of the Chairman, she says that essentially it is answered, were she to try to answer it any better, it would be a question of juggling the information that she has already provided to put it into a different order, and as a lay person she is reluctant to do that, in part because she is reluctant with her state of legal knowledge, for example, to make distinctions between direct and indirect discrimination, between direct discrimination and victimisation. All these are matters that she will be leaving to the tribunal, her task, she says, is to put before the tribunal what her case is and that fully emerges from that prolonged statement which was provided to Mars as long ago as February 1996 and which since has been put before the Chairman.Thus it is that she seeks to appeal against that Order made by the Chairman, the Order of 9th August 1996 as reiterated in the letter of 13th August 1996.In response, Mr Wynter takes a point based upon Adams and Raynor v West Sussex County Council [1990] IRLR 215 . He submits that the powers of this tribunal when confronted by an Interlocutory Order are circumscribed. On that authority when considering:
" ... an interlocutory order of an industrial tribunal or of a chairman sitting alone we would define three issues (a) Is the order made one within the powers given to the Tribunal? (b) Has the discretion been exercised within guiding legal principles? eg as to confidential documents in discovery issues. (c) Can the exercise of the discretion be attacked on Wednesbury principles?"
Submits Mr Wynter that the answer to all three questions is unfavourable to this appeal. Thus the Order that was made was one within the powers of the tribunal. Second, he would submit, the discretion exercised by the Chairman was within guiding legal principles; and third he submits that the exercise of that discretion cannot be attacked on Wednesbury principles.Turning somewhat reluctantly to the merits of the matter, he submits that whereas he accepts that within the statement there is much of the material that could and should (he would say) find its way into a response to the request, it is in no clear order and more particularly it is not properly analysed, so it is difficult to discern from the statement that which is alleged by way of direct discrimination, that which is alleged by way indirect discrimination, and that which may be regarded as no more than background. Thus it is, he submits, that the Order made by the Chairman is one that is readily to be supported by reference to the merits. So far as being Wednesbury unreasonable, it was indeed the only order that he could properly make.In reply to that submission, Miss Willis says in these terms that she does not believe that the Chairman could have read her statement, that if he had read it, he could not conceivably have come to the decision that he made, and if that means that his decision was perverse, so be it.This tribunal has anxiously considered this matter, bearing in mind several factors that are plainly of importance. The first factor is the point taken by Mr Wynter as to the role of this tribunal when confronted by an appeal from an interlocutory decision, and we bear much in mind the point made by Mr Wynter that not only does the principle as already cited flow from our role as a tribunal with jurisdiction only as to law, but it also reflects a need to be circumspect with respect to appeals from interlocutory decisions, it being plainly good policy that those decisions should for the most part remain with the Industrial Tribunal.The next factor, however, that has weighed much with us is this, that we are concerned here with an unrepresented applicant who rightly reminds us that the Industrial Tribunal is a tribunal that ought to be available and indeed is available to the unrepresented. In a trite but perhaps helpful phrase it ought to be "user friendly". We do bear in mind that when as appears to be the case here, an unrepresented applicant has in effect set out her stall fully, then tribunals at all levels should be circumspect about demanding in addition to that anything that would normally require some degree of legal knowledge, that is an ability to categorise facts and present the facts according to that legal categorisation.The third matter which has also weighed with us, but less than the other two, is the appreciation of the timescale. We are now on 20th September and in almost exactly a months' time, this matter is due to be heard by the Industrial Tribunal.That then are the particular matters that have weighed with us.Turning back then to our view about the appeal itself, it is as follows. We are entirely satisfied that we can and we should vary the Order made by the Chairman as to the provision of further and better particulars in this case. We have to say that there is considerable force in Miss Willis's submission that it is difficult to conceive of the original Order remaining as made, that is by reference to the request, had her statement been read as full. Plainly, the statement answers a significant part of the original request, and once that had been before the tribunal, then we have to say that some modification of the original order for further and better particulars was plainly called for.That being the situation, and having proper regard to the principle already enunciated, we conceive it to be within our power to quash the Order as made, that is to allow the appeal as to that extent, but to substitute in its place an Order for such particulars as are plainly outstanding and, in our judgment, plainly need to be provided in order to enable the respondents, Mars Confectionery, to have full knowledge of the case as it is presented to them.What we propose to do is this, is to substitute for the Order made the Chairman, an Order requiring Miss Willis as the applicant, within the next seven days to list the names of those employees of Mars whom she contends were guilty of discrimination or victimisation, to list further the names of all persons whom she says were treated in a non-discriminatory fashion, that is all persons who come within the category of "comparators" as specified in the original request. We are aware that Miss Willis seemingly has provided this information directly to Mars earlier this year, that in effect will mean that the task should not be difficult for her. But it does seem to this tribunal that that part of the Order has not been fully satisfied by the statement. That is plainly a matter of serious importance for the respondents, and a matter, we would say, of importance for the presentation of this complaint, and for its fair reception by the Industrial Tribunal itself.The further observation we would make before leaving this case, is this, that Miss Willis might look carefully again at her proof , that is at the statement that proceeds from 2 -17. She has heard the comments of this tribunal about it; namely, that it is not in chronological order, and indeed it is a little difficult to see what order applied to its compilation. We would emphasise to her, that it still remains a matter to her advantage to give the Industrial Tribunal every assistance in understanding her case. That may be better achieved by one or two acts if not both, that is either putting the matter in chronological order, or if there is a particular reason why it is not in chronological order, indicating that by putting sub-headings, so as to identify the train of thought that lies behind the present selection. It may be that a combination of both those steps would assist her own presentation and were she to provide any statement redrafted along those lines to Mars Confectionery no doubt it will assist the progress of this case on 21st October, it may also give considerable assistance to the Industrial Tribunal in ensuring that her complaint is fully understood, notwithstanding the fact that she is not represented, and ensuring further that Mars themselves are treated with all possible fairness in this matter. We do not make any Order in the latter lines, but we point out to Miss Willis, who we appreciate has listened carefully to us, the potential significance to her of heeding that piece of well meant advice.