Golden v Law Society Of England & Wales [1998] UKEAT 1289_97_1802

EAT
Golden v Law Society Of England & Wales
[1998] UKEAT 1289_97_1802 · 1998-01-21
MR JUSTICE KIRKWOOD : This is a judgment in an appeal from an Industrial Tribunal on an interlocutory matter arising out of a complaint of sex discrimination.In 1983 a solicitor who had conquered alcoholism established a Lawyers Support Group ["LSG"] to offer support to lawyers with an alcohol problem.Between 1991 and 1995 the Law Society, acting both upon its own initiative and in liaison with LSG, undertook research into the incidences, causes and effects of alcoholism in the solicitor's profession.In 1996 a working committee of the Law Society advised setting up a scheme to provide education and assistance to solicitors in relation to addictive drinking. Such scheme was to be operated by a Company limited by guarantee to ensure its formal independence from the Law Society.That advice was accepted by relevant committees of the Law Society and by its Council, and such a Company was registered in February 1997. The Company was registered as a charity in April 1997.In the meantime, staff and officers of the Society whom it was envisaged would be members of the Board of the Company and Trustees of the Charity, set about the task of recruitment of a co-ordinator.The post of "Support Programme Co-ordinator" was advertised in the Law Society Gazette on 6th November 1996. The advertisement set out a full description of the post as well as the requirements for applicants.100 applicants applied for the post. A sift was carried out by which the 100 applications were reduced to 10 from whom interviewees would be selected. Those 10 included two reserves one of them being Ms Beverly Golden.The list of 10 was submitted to two prospective members of the interview panel and the list was reduced to a list of eight for interview. There were four men and four women and the list included Ms Golden.Each of the eight was interviewed by a panel of five against certain agreed and perfectly reasonable criteria. Following that exercise the panel agreed to a second shortlist to be invited for second interview. There were three on that shortlist, with one reserve. Ms Golden was not shortlisted.On 14th March Ms Golden complained to an Industrial Tribunal of sex discrimination. In her application she says:1. She was well qualified for the post.2. At interview on 18th December 1996 she was subjected to a barrage of sexist questions about her ability to cope with the job: questions she does believe would have been addressed to a man. The questions, she says, amounted to direct and indirect discrimination. But she thought that she had answered them well and expected a second interview.3. On 20th December 1996 she learned by letter that she had not been successful. She later learned that a man had been appointed to the post.4. On 6th January 1997 Ms Golden enquired by telephone why she had been unsuccessful and was told that "it was felt that those with counselling experience had the edge". Ms Golden says that she found that a ridiculous excuse and does not accept that reason for her lack of success.On 2nd April 1997 the Law Society entered a Notice of Appearance, promising full particulars of its grounds for resistance, the applicant having been asked for full particulars of her case. The applicant responded to that with some particulars on 22nd June 1997, following an order of 7th June 1997.On 10th April 1997, meanwhile, the applicant served on the respondent a questionnaire under s. 74 of the Sex Discrimination Act 1975 . That was, in fact, a few days out of time.On 3rd June 1997 the Law Society furnished detailed grounds of resistance in which it addressed most, if not all, of the matters raised in the applicant's questionnaire. It included this:
"23. The panel excluded the Applicant from further consideration solely on the basis of her performance at interview. Considerations of gender or of family commitments played no part in the decision. The factors which counted against her included the following: (a) she indicated inadequate experience of counselling and inadequate knowledge of alcoholism; (b) she admitted that she had relapsed from her recovery from alcoholism on more than one occasion; (c) she appeared to lack the inter-personal skills which would be necessary for a number of significant aspects of the post. The panel formed the view that she would not relate effectively to people in need and that she would not have the skill to win over the scepticism of unsympathetic sectors of the profession. (d) She introduced into the discussion the subject of her personal religious faith in a manner which suggested that in conducting her duties she would promote her religious faith in a manner which might appear to others to be evangelistic and aggressive and would therefore be inappropriate.
24. All candidates were asked about their personal experience of alcohol and if they were personally recovered alcoholics, when they had recovered. All candidates were asked about flexibility, isolation and working from home. All candidates were asked about stress and in particular the stresses caused by isolation and working from home. All candidates were asked questions about past work experience and about how they would deal with local Law Societies. All candidates were asked about "intervention", ie the concept of pro-active involvement with another person's alcohol or dependency problem.25. It is denied (as alleged by the Applicant) that the Applicant was asked questions about her personal relationships with men."In the applicant's further and better particulars (22.6.97) she set out her recollection of the questions at interview of which she wished to complain:
"1. The questions asked during the interview of which I complain and to the best of my recollection:
A. The questioner Mr Charles Elly:i. You were a sole practitioner and then how many partners did you have?ii What size are the firms you are working for as a locum?iii The management experience you have is in what size firm?iv You are free to travel are you?v And you can make arrangements for your children while you are working can you?vi Now after your marriage broke down you became involved with someone else?B The questioner Mr Robert Venables:i. Wouldn't you find the job very stressful?ii Wouldn't you find the job very distressing?iii How would you cope with the stress?C The questioner Mr Jonathan Goodliffe:i. Would you anticipate being involved in interventions yourself?ii Do you drink now?iii Do you intend to go to AA meetings?D The questioner Mrs Jean Johnson:i. What would you say if speaking to a local law society because they can be rather ...?"In that same document the applicant also set out the matters on which she relied in support of her claim as to indirect discrimination.A directions hearing was fixed for 11th September 1997: that was to deal with both questions of discovery and an application that, pursuant to Regulation 7 Industrial Tribunal (Constitution etc.) Regulations, the applicant be ordered to pay a deposit.On 29th August 1997, the respondent, the Law Society, wrote to Ms Golden:
"We refer to the hearing in this matter on September 11th.
We have asked you to let us know what Directions you will seek, but you have not replied.We have therefore considered the issue of Discovery of documents by our client, in the light of the approach suggested by the House of Lords in Nasse -v- Science Research Council 1979 IRLR 465 .If the matter proceeds, our clients will submit to an Order for Discovery of the documents set out in the list attached to this letter.If you consider that there may be any relevant documents in our client's possession which have been omitted from the enclosed list, please let us have a list of them by return.We draw the following points to your specific attention:1. In accordance with the approach in Nasse , and adopted in practice many times since then, we will delete any information from the disclosed documents which might render any person identifiable.In justice to the issue in the case, this will still leave open to you a considerable volume of very intimate information about other candidates."It is unnecessary for me to read into this judgment this next two paragraphs of the letter. It concludes:
"We have also made up a bundle which we propose to rely upon before the Tribunal. A copy is enclosed."
During the night of 10th/11th September 1997 the applicant sent a letter by fax to the Industrial Tribunal explaining her inability to attend the hearing.The Industrial Tribunals (Constitution etc.) Regulations 1993 provide at Regulation 7 for a pre-hearing review. The relevant parts of that Regulation are in the following terms:
"7.-(1) A tribunal may at any time before the hearing of an originating application, on the application of a party made by notice to the Secretary or of its own motion, conduct a pre-hearing review, consisting of a consideration of- (a) the contents of the originating application and notice of appearance; (b) any representations in writing; and (c) any oral argument advanced by or on behalf of a party.
. ..(4) If upon a pre-hearing review the tribunal considers that the contentions put forward by any party in relation to a matter required to be determined by a tribunal have no reasonable prospect of success, the tribunal may make an order against that party requiring the party to pay a deposit of an amount not exceeding £150 as a condition of being permitted to continue to take part in the proceedings relating to that matter.(5) No order shall be made under this rule unless the tribunal has taken reasonable steps to ascertain the ability of the party against whom it is proposed to make the order to comply with such an order, and has taken account of any information so ascertained in determining the amount of the deposit.(6) An order made under this rule, and the tribunal's reasons for considering that the contentions in question have no reasonable prospect of success, shall be recorded in summary form in a document signed by the chairman. A copy of that document shall be sent to each of the parties and shall be accompanied by a note explaining that if the party against whom the order is made persists in participating in proceedings relating to the matter to which the order relates, he may have an award of costs made against him and could lose his deposit.(7) If a party against whom an order has been made does not remit the amount specified in the order to the Secretary either-(a) within the period of 21 days beginning with the day on which the document recording the making of the order is sent to him, or(b) within such further period, not exceeding 14 days, as the tribunal may allow in the light of representations made by that party within the period of 21 days,the tribunal shall strike out the originating application or notice of appearance of that party or, as the case may be, the part of it to which the order relates."We are told, and accept from what we have seen, that the Chairman saw and read the contents of the Originating Application and the particulars given thereunder, the Notice of Appearance that set out the Law Society's case, and the applicant's fax of 11/9/97. It is clear from reasons that are given by the Chairman on the discovery point, also decided that day, that he had the broad issues in mind.That same day, 11th September 1997, the Chairman made an order in these terms:
"The Tribunal considers that the following contentions put forward by the applicant:
That the Respondents discriminated against her on the ground of her sex.In relation to the following matter:

The Applicant's claim of Sex Discrimination

have no reasonable prospect of success. The reasons, in summary form, for considering that the contentions in question have no reasonable prospect of success are:The Questions alleged by the Applicant at her interview are not, in the context of the job concerned, prima facie , discriminatory.The Tribunal therefore ORDERS the applicant to pay a deposit of an amount of:

£100.00 (One Hundred Pounds)

not later than: 21 days after receipt of this order,as a condition of being permitted to take part in the proceedings relating to the matter referred to above."The view taken by the Chairman that on the papers the case had no reasonable prospect of success and that the questions asked were not, in the context of the job concerned, prima facie , discriminatory, was one that lay within the ambit of his discretion. He gave, as required, summary reasons.The order was drawn up that day and sent out to the parties. The applicant, Ms Golden, does not dispute that she received it in the ordinary course of post. It gave her 21 days to pay a deposit of £100. She did not pay it.That same day the Chairman made an order about discovery. For some reason, there was a delay in formulating the reasons for that order.On 2nd October 1997 Ms Golden wrote to the Industrial Tribunal:
"I refer to the order on pre-hearing review dated 11th September 1997 that I pay a deposit of £100 within 21 days of the receipt of the order to continue the case.
I have telephoned your office three times in the last three weeks requesting that I be sent without delay the directions made at the pre-hearing review so that I can decide if I wish to continue with the case. The first time I telephoned on about 19th September I was told the file was in for typing and I would have the directions within a couple of days as typing was being expedited.Please will you arrange for me to be sent these directions without delay. I cannot consider my position until I know the directions I sought were made so please confirm that the 21 days for payment of this deposit will not run until I receive the directions, that is, all the orders made at the pre-hearing review.I am told by your office that I cannot appeal against the order that I pay a deposit in order to continue. Is this right?"The reasons on the discovery point were completed and signed on 6th October 1997 and sent to the parties. Ms Golden has no record of receipt of any reply from the Industrial Tribunal to her letter of 2nd October 1997 nor of any other letters from the Industrial Tribunal after that date. It is clear, however, that on 19th October 1997 the Industrial Tribunal wrote to the respondents' solicitors that, in view of the delay of the reasons, the applicant's time for payment of the deposit had been extended to 31st October 1997.On 17th November 1997 the Employment Appeal Tribunal received Ms Golden's Notice of Appeal. It related to the order for a deposit to be paid, to the order made for discovery and to the failure of the Industrial Tribunal to allow her to put forward a s. 74 questionnaire. I take that to be a complaint that the Industrial Tribunal did not formally extend a time for the questionnaire. In that regard the respondent maintained that it had dealt with the questionnaire so that any default in that regard may be a matter for argument at a full hearing, if the case goes to a full hearing, as to inference to be drawn, if any.It is our understanding that, upon registration of an appeal, the Employment Appeal Tribunal automatically informs the Industrial Tribunal concerned. Despite notice of a pending appeal, on 5th December 1997, and in pursuance of regulation 7(7), Ms Golden's Originating Application was struck out by the Industrial Tribunal. It would have been better if the Industrial Tribunal had stayed its hand. But in practice it makes no difference. If the order for a deposit is set aside, the striking out order falls also.I return to the order for a deposit made on 11th September 1997. Mr Lewis, for the Law Society, argued preliminarily that the appeal was out of time. We had no hesitation in saying that even if, technically, was right, then, having regard to the history I have outlined, we extended the time.Miss Golden appeals on the basis:(a) That the questions she was asked at interview were prima facie discriminatory.(b) To order to pay a deposit was to pre-judge her case.(c) The order treated her prejudicially and denied her a fair hearing.(d) Ordering her to pay a deposit when she did not have the means to do so prevented her continuing her claim and denied her justice.I have already indicated our view that the ruling as to the questions not being, in the circumstances, prima facie discriminatory lay within the discretion of the Chairman; nor has Ms Golden begun to persuade us that is was a discretion exercised in such a wrongful way as to be open to challenge. Indeed it is Ms Golden's case that the questions were not so much prima facie discriminatory as discriminatory (albeit not intentionally) in the light of unconscious prejudice, in the light of the contrasting way she thinks other interviewees must or may have been questioned, and in the light of her broader views of indirect discrimination. The order made did not debar Ms Golden from proceeding to argue the subtleties of her case, but it did make the prosecution of her complaint subject to payment of a deposit and at the same time putting her on notice of risk as to costs.The aspect of this part of the appeal that has caused us to pause, as least momentarily, arose from regulation 7(5).Had the Chairman taken reasonable steps to ascertain the ability of Ms Golden to comply, and had he taken account of any information so ascertained in deciding the amount? We note that there is no requirement of the regulations that that part of the deliberation be recorded in summary or any other form.We were aware that, prior to 11th September 1997, Ms Golden knew that the Industrial Tribunal was to consider the question of a deposit. In her faxed letter of 11th September 1997 Ms Golden said this:
"In my submission I raise a good prima facie case and I do have a reasonable prospect of success. However, if you disagree with me I would ask you to take into account that I will suffer extreme hardship if I have to pay a deposit to continue my case. I am a single mother, I have no assets or savings and I live in rented accommodation. I have sole responsibility for two young children one of whom has special needs which meant that I was only able to return to full time work at the beginning of this year after a career break to care for my children. I am still paying off debts from the period when I was unable to work."
At the end of the letter Ms Golden said:
"Please excuse my attendance at 10.30am as I have no-one to take my children to school for me, I cannot afford to take the time off work and the travelling expenses to this hearing, and I have urgent work which I have to deal with on behalf of clients."
Accordingly the Industrial Tribunal Chairman was faced with the position that Ms Golden had not attended; that she was aware of the application; that she was a single mother coping with two children on her own and with some accumulated debts; but, on the other hand, she was a professional woman, a solicitor, in full time work then and for the past eight months.Reflecting on those matters we concluded that we were unpersuaded that the Chairman had not made reasonable enquiry - indeed it is unclear what else, on the day, he could have done in that regard; and we were unable to find that his determination of £100 was so manifestly wrong as to demonstrate a wrongful exercise of discretion.We accordingly concluded that the appeal against that part of the orders of 11th September 1997 must fail and the order for a deposit must stand. It follows that the mandatory consequence of non-payment by 31/10/97, namely striking out pursuant to regulation 7(7), must follow.Our decision on the first part of the appeal brings this case to an end. Lest, however, we may be wrong about it, we indicate our approach on the discovery point on which we have heard full argument.The respondent had, in advance of the hearing on 11th September 1997, indicated its willingness to disclose relevant documents, of which it had furnished a list, subject only to deleting material that would identify or lead to the identification of the other nine applicants called for interview.The opening words of the Law Society's advertisement of November 1996 was in these terms:
"Experience of legal practice, ideally as a solicitor - possibly a recovered alcoholic with a track record of helping others - is preferred ..."
In response to that, some applicants had given highly personal information relating to their own medical history and their own related circumstances. The Law Society felt that it was incumbent upon it to respect the confidence reposed in it in such respects by those applicants.On the other hand, as the Chairman was well aware, the applicant, Ms Golden, wanted access to those applicants so that she could interview them herself about the content and style of their interviews for the job.The relevant part of the order made by the Industrial Tribunal on the discovery matter, was in these terms:
"(1) The Respondents on or before 30 October 1997 produce for inspection at the offices of their solicitors the documents set out in the Schedule annexed to this order, but subject to the covering up of any information in such documents as may render identifiable the name, address identity or previous employers of any applicant for the post of Support Group Co-ordinator."
The reasons for that decision were given subsequently and are set out in the written reasons completed on 6th October 1997.
"4. The job advertisement invited applications from candidates who were recovered alcoholics and the application forms and letters contain exceptionally sensitive information about the candidates themselves and, in some case, their professional and family associates. Mr Lewis submitted that, in exercising its discretion to order discovery in accordance with the principles set out in Science Research Council v Nasse [1979] IRLR 464, the Tribunal out to have regard to the nature of the information about third parties in this particular case. The Applicant contends that, as a solicitor, she understands the duty of confidentiality in relation to documents disclosed on discovery.
5. Although I have no reason to believe that the Applicant would breach any duty of confidentiality, I consider that disclosure of the application forms and letters from other candidates should be subject to the covering up of information which might reveal their identities or that of their previous employers. In Oxford v Department of Health and Social Security [1977] ICR 884 the Employment Appeal Tribunal held that, although there was no reason why the qualifications of successful applicants for a job should not be disclosed in a discrimination case, an employer was not obliged to disclose the names and addresses of the candidates. The actual identity of the candidates is not relevant to any of the issues in this case, and I do not consider it legitimate to order discovery for the purpose of enabling the Applicant to trace potential witnesses.6 The identity of the candidates' previous employers may have a very slight relevance to the issues in the case as going to show the professional experience of other candidates, but, bearing in mind, in particular, that the Applicant was not applying for work as a solicitor, I consider that the interest in disclosure of the identity of the candidates' previous employers is outweighed by the interest of keeping that information confidential. The Respondents have therefore satisfied me that disclosure of the letters and applications forms of other candidates should be subject to the covering up of any information which might render identifiable the name, address or previous employer of any candidate. I order the Respondents to give discovery within 14 days, but in case the Applicant decides to withdraw the application, that time will not begin to run until 16 October. I consider it necessary for the Applicant also to give discovery, and I have therefore ordered her to disclose all relevant documents within the same time."The central question raised by the decision is whether discovery should be ordered in a manner that enabled the applicant to trace and interview the other applicants for the job. Had Ms Golden access to those other candidates, they would have been entirely free to respond to her or not as they wished. They would not have been obliged to come forward for interview by Ms Golden. To have disclosed the names of those who were in the result unwilling would have been a pointless and harmful breach of confidence.In the course of argument, Mr Lewis made clear that the Law Society was perfectly prepared to pass on to each candidate a suitable letter from Ms Golden with an appropriate covering letter from himself on behalf of the Law Society. In that way, Ms Golden would have acquired access to any candidates who may be willing to help her.The formal question for the Chairman of the Industrial Tribunal was one of discovery of documents. There, relevance of the document is the vital issue to be weighed against the confidentiality of sensitive information relating to third parties. On that formal question, the Chairman did not plainly carry out the balancing exercise wrongly or err in the exercise of his discretion.But what Ms Golden was really after was something else; she wanted the names and addresses of the other candidates. Mr Lewis offered to us a solution. He told us - and we have no doubt - that had Ms Golden attended before the tribunal on 11th September 1997 so that the matter could have been properly heard then as it has been today, he would have put forward the same solution at the time.Accordingly, had it been necessary for us to determine this part of the appeal we would have done so by dismissing it upon the understanding that Mr Lewis would have moved the case forward by the solution he proposed.