MRS R MAHMOOD v UNITED BANK LTD [1999] UKEAT 844_99_2707

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 844_99_2707Case No Appeal No. EAT/844/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS R MAHMOODAPPELLANTUNITED BANK LTDRESPONDENT
Before
His Honour Judge Peter Clark Mr J R Crosby Mr A D TuffinDate 27 July 1999
[1]APPEARANCES For the Appellant MR D O'DEMPSEY (of Counsel) Instructed By: Ms C Aylott Messrs Lawford & Co Solicitors 102 - 104 Sheen Road Richmond Surrey TW9 1UF For the Respondents MS L CHUDLEIGH (of Counsel) Instructed By: Mr M Taylor Messrs Garretts Solicitors 180 Strand London WC2R 2NN JUDGE PETER CLARK : This case is currently proceeding in the London (North) Employment Tribunal. By an Originating Application dated 1 April 1999 the Appellant, Mrs Mahmood, complained of unlawful racial discrimination on the part of her employer, the Respondent Bank.[2]It is her case that since the commencement of her employment in March 1990 she worked as an Executive Secretary to the General Manager (GM), the Bank's senior employee in the UK. The GM changed from time to time. She was based at the Mark Lane branch.[3]On 4 January 1999 a new GM, Mr Robert Wild, commenced in post. On 7 January Mr Wild introduced a new employee to the Appellant called Wendy. Wendy is of white European origin. The Appellant is of Pakistani nationality.[4]On 13 January, the Appellant alleges, she was asked to work for the former GM, Mr Raza, at the Commercial Street branch, which had been closed. She returned to Mark Lane and has since had no work to do; her former function is being carried out by Wendy.[5]She claims that in filling her position with a white European the Appellant has been discriminated against on racial grounds.[6]The claim is resisted. By their Notice of Appearance dated 30 April 1999 the Respondent contends that as part of a reorganisation Mr Raza was replaced by Mr Wild. Mr Raza has since returned to Pakistan and no longer works for the Bank.[7]At paragraph 6 of their grounds for resistance they say this:
"Prior to his leaving, Mr Raza advised Mr Wild that the Applicant was not a satisfactory General Manager's secretary and that he would need to recruit one. The Applicant remained as Mr Raza's secretary until his return to Pakistan whereupon the Applicant became secretary to another senior manager at the bank, Mr Lateef. Mr Wild did not have any say whatsoever in the transfer of the Applicant which was the decision of Mr Raza."
[8]By a letter dated 14 May the Appellant's Solicitors (Lawfords) wrote to those acting for the Respondents (Garretts) requesting Further and Better Particulars of the grounds for resistance; answers to questions under the rule 4(3) procedure and specific discovery.[9]The relevant request for particulars reads:
"Under paragraph 6, of: 'Mr Raza advised Mr Wild that the Applicant was not a satisfactory General Manager's Secretary and that he would need to recruit one'. Please state whether such advice was given orally or in writing. If orally state the date and time of the conversation, where it took place and the gist of the conversation."
[10]The response from Garretts dated 27 May is in the following terms:
"Answer: Our client believes that the advice was given orally. It believes that the issue was raised on 14 and 15 November 1998 by Mr Raza. Our client is awaiting confirmation of this from Mr Raza, who you will appreciate no longer works for our client and has in fact relocated to Pakistan. Further details on this point will be provided when Mr Raza has responded to our client's questions."
[11]On 1 June Lawfords wrote to Garretts making this observation:
"We note from your answers to our request no.2 for further and better particulars that further details will be provided when Mr Raza has responded. With respect, you have said that Mr Raza advised Mr Wild. Why can Mr Wild not provide the particulars?"
[12]That question was not answered.[13]On 14 June a division of the EAT presided over by Morison J heard an appeal by the Respondent against a Chairman's refusal to order a postponement of the substantive hearing then fixed for 18 June. The ground for that application was that Mr Raza was abroad and would not be available for the hearing. The appeal was allowed and the hearing date vacated. We understand that it has been refixed for 5 August.[14]Following that hearing Lawfords faxed Garretts on 16 June in these terms: "We understand that at the EAT hearing on Monday, your Counsel indicated that the reason for the Applicant's removal from her position as General Manager's secretary was an allegation of breach of confidentiality and that information known only to her and to Mr Raza was used at a Tribunal. Please let us know what that information was and at which Tribunal it was used. Is it your client's case that our client was informed of this allegation?[15]Garretts responded on 17 June as follows:
"We confirm that Counsel indicated before the EAT that the reason our client moved your client to another secretarial position was because of concerns over confidentiality. Counsel then merely raised a concern of our client that information may have been passed for use at a Tribunal, but it currently has no evidence to this effect. It will be for Mr Raza to explain to the Tribunal which hears your client's claim the issues regarding confidence that caused him concern and whether these were general or specific in nature. These are matters of evidence and neither narrow nor better define the issues between the parties. Therefore, they are not an appropriate subject for written requests. In answer to your other question, it is not our client's case that your client was informed of Mr Raza's concerns."
[16]To that, Lawfords wrote on 23 June:
"If it is your case that our client was moved to another secretarial position because of concerns over confidentiality, she is entitled to know what those concerns were. These issues go to the heart of the case and will affect the evidence which will be brought on behalf of or by the applicant. We cannot accept that they are matters of evidence which neither narrow nor better define the issues between the parties. They are the issues. We would refer you to the case of White -v- University of Manchester [1976] IRLR 218. Unless we hear from you within 7 days with particulars of the reason that the Applicant was considered to be an unsatisfactory General Manager's secretary, we will be asking the Tribunal for an Order. ..."
[17]No response having been received, Lawfords applied by letter of 12 July to the Tribunal seeking an order, in these terms:
"We also write to request an order for Further and Better Particulars as follows: Under paragraph 6, Of 'Mr Raza advised Mr Wild that the Applicant was not a satisfactory General Manager's secretary' State what was the gist of the conversation and what was the reason given by Mr Raza that the Applicant was not a satisfactory General Manager's secretary."
[18]Before that application was determined by the Tribunal, Garretts replied on 15 July. The person dealing with the matter had been on holiday, hence there had been no response to Lawford's letters of 23 June and 12 July. The substantive response was as follows:
"In terms of the substance of your request, we believe that we have made it clear that Mr Raza of our client was concerned over your client's general ability to keep information confidential. We believe that such particulars as Mr Raza can give regarding his concerns are matters of evidence for the tribunal hearing. We see no reason for further interlocutory decisions of the tribunal, especially given the fact that we have now received a new hearing date of 5 August 1999."
[19]A copy of that fax was sent on the same day to the Employment Tribunal with a covering letter in which Garretts said that they had given adequate particulars.[20]Following a reminder from Lawfords dated 22 July the Regional Chairman, Mrs Mason, dismissed the application made on behalf of the Appellant on 12 July. The letter from the Tribunal dated 23 July reads as follows:
"Your letter of 12 July 1999 has been referred to a Chairman of the Tribunals who has refused your request for an order for further particulars for the following reason: The request is one that the Respondent pleads its evidence and/or for answers to questions which will not satisfy both the requirements of Rule 4(3) of the Employment Tribunals Rules of Procedure 1993."
[21]Pausing there, Lawfords then faxed the Tribunal following a telephone conversation with a member of staff at the Tribunal because they did not understand the second part of the reasons given by the Chairman for refusing the application. No reply was received to that fax and we confess that we can see no relevance to Rule 4(3) which deals with answers to questions when this was simply an application for further particulars. In these circumstances it seems to us the only reason advanced for refusing the application was that the request related to evidence.[22]Dissatisfied with that order the Appellant commenced this appeal by a Notice dated 26 July. The Appeal[23]Mr O'Dempsey recognises that Tribunal Chairmen have a wide discretion in whether or not to make interlocutory orders such as this. To succeed in this appeal he must show either that the Chairman failed to exercise her discretion within guiding principles or that the Chairman's conclusion was perverse under Wednesbury principles: see Adams v West Sussex County Council [1990] IRLR 215 per Wood J, paragraph 15.[24]As to the first limb of that test, he submits that the Chairman's order overlooked the statements of principle to which he has referred us contained in the judgment of Phillips J on behalf of the EAT in White v University of Manchester [1976] ICR 419, 422 G - 423 D. Particulars are necessary in this case, he submits, so that the Appellant may know the nature of the case she has to meet, particularly in circumstances where the burden is on her to prove her complaint of unlawful discrimination and where she must go first at the hearing.[25]We see the force of that submission, but we must look carefully at the request made by Lawfords in their letter of 12 July. It is directed to what Mr Raza said to Mr Wild. Ms Chudleigh tells us that there is no more. Mr Raza did not give particulars of his reasons for describing the Appellant as unsatisfactory to Mr Wild.[26]Here, we think, lies Mr O'Dempsey's difficulty. His real purpose before us is to ask a different question, namely, what was in Mr Raza's mind in describing the Appellant as unsatisfactory. That is not strictly the request with which the Chairman was asked to deal and which we must consider in this appeal.[27]In these circumstances we would uphold the Chairman's order, if necessary, on the ground that adequate particulars have been given, as Garretts submitted to the Chairman in their fax to the Tribunal of 15 July. On that basis the Chairman's decision cannot be said to be perverse.[28]Ms Chudleigh has frankly told us that the Respondent is not yet sure whether Mr Raza will attend the hearing on 5 August. If he does not, then the Respondent will be in grave difficulties seeking to explain the apparently less favourable treatment meted out to the Appellant.[29]If he does return to the UK to give evidence we are pleased to note that during this hearing the parties have agreed to an exchange of witness statements by 5 pm on 4 August. In this way the Appellant will not be taken by surprise when giving her evidence.[30]In these circumstances we shall dismiss this appeal.