SOUTH TYNESIDE COUNCIL v MRS A ANDERSON AND OTHERS [2005] UKEAT 0002_05_2303

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0002_05_2303Case No Appeal No. UKEAT/0002/05Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
SOUTH TYNESIDE COUNCILAPPELLANTMRS A ANDERSON AND OTHERSRESPONDENT
Before
Mr Justice WilkieDate 23 March 2005
[1]APPEARANCES For the Appellant MR JOHN BOWERS QC (of Counsel) Instructed by: South Tyneside Metropolitan Borough Council Legal Services Town Hall & Civic Offices Westoe Road South Shields Tyne & Wear NE33 2RL For the Respondent MR DECLAN O'DEMPSEY (of Counsel) Instructed by: Messrs Thompsons Solicitors St Nicholas Building St Nicholas Street Newcastle upon Tyne NE1 1TH SUMMARY Equal Pay Claim Procedure – disclosure of documents. THE HONOURABLE MR JUSTICE WILKIE This is an appeal by South Tyneside Metropolitan Borough Council against a Case Management Decision made by Mr Hargrove, sitting alone, at the Employment Tribunal in Newcastle upon Tyne on 12 November 2004, in the case brought by Mrs A Anderson and others.[2]The Claimant is one of a group of some 218 Applicants for an award of equal pay in the context of a larger claim, in which there are 682 claims backed by Unison, and 478 by the GMB, who are not parties to this particular appeal; nor were they parties to the application from the conclusion of which this appeal lies.[3]The application was for disclosure in the context of issues which had arisen between the parties in connection with what is known as the Green Book 2002 Scheme. The Applicant contended that her post had been rated as equivalent to or higher than her comparators under the Green Book job evaluation scheme, completed, she said, in 2002. The Appellant responded to that claim by denying that the Claimant's post had been rated as equivalent with that or any other post under the Green Book Scheme and, in particular, asserted that the Appellant had not completed that job evaluation scheme. Accordingly, one of the major issues between the parties was whether the 2002 Green Book job evaluation scheme was a valid scheme for the purposes of the equal pay claim.[4]The Chairman, in his Decision, identified the essence of a valid scheme by reference to number of authorities, and in particular the case of Arnold v Beecham Group Ltd [1982] IRLR 307. In his Decision, he quoted from the headnote in the report of that case the following passage:
"Before the Equal Pay Act can be applied there must be a completed job evaluation study and there is no complete job evaluation study unless and until the parties who have agreed to carry out the study have accepted its validity."
[5]He also relied on a passage from O'Brien v Sim-chem Ltd [1980] IRLR 373. He described that as a case where the employer and employees had agreed the job evaluation study. All that remained to be done was the addition of a merit assessment scheme and the implementation by the employers putting money to it by paying in accordance with it. He quoted the following passage:
"It is not the stage of implementing the study by using it as the basis of the payment of remuneration which makes the study complete: it is the stage at which it is accepted as a study. It is perfectly possible to accept the validity of a study at a stage substantially before it is implemented."
[6]The Respondent to the appeal was seeking disclosure of two broad categories of documentation in respect of this job evaluation study. They were respectively;(i) such documents as exist which set out scoring, rankings and bandings; and(ii) such documents which identify what has been agreed and what remains to be agreed. In addition, they had sought disclosure of certain other documentation, which the Chairman refused, and there is no cross-appeal in respect of that.[7]The Chairman approached the matter under Rule 10(2) of the Employment Tribunal Rules 2004 and in so doing he concluded that his powers of disclosure were the equivalent of those which might be ordered by a County Court. He therefore referred to the Civil Procedure Rules and in particular to Rule 31, Rule 31.5 provides for standard disclosure unless the court otherwise directs. Rule 31.6 identifies what documents must be disclosed on standard disclosure. He also referred to Rule 31.12 which deals with specific disclosure. He appears to have considered that the power which he was exercising was a power relating to specific disclosure, rather than considering the adequacy or otherwise of what was intended to be standard disclosure. He said that he did not consider the fact that there had not been an order for standard disclosure as preventing him from hearing and making an order on an application for specific disclosure.[8]A point has been taken on the appeal by Mr Bowers that in order for there to be specific disclosure there has, pursuant to the Practice Direction, to be evidence to support it. Whilst I am not persuaded that it necessarily automatically follows that the Employment Tribunal has to apply the Practice Direction, as opposed to the CPR Rules themselves, nonetheless in my judgment the approach envisaged by the Practice Direction contains an important principle, which is that in order that disclosure should be as much as, but no more than is necessary for, the effective disposal of the litigation – a step-by step approach is often to be preferred.[9]That said, the Order which the Chairman made was one which he said he made because "[i]t seems to me that the point [that is to say, whether or not the Green Book job evaluation study was a valid one] cannot be argued without disclosure of the relevant documents." He concluded that the relevant documents were as follows:
"…such documents as exist which set out scorings, rankings and bandings… and such documents which identify what has been agreed and what remains to be agreed. I am prepared to make an order for disclosure of such documents by description…"
In my judgment, looking at that passage alone, having regard to the issue between the parties and the legal test which had been identified by the Chairman of the Tribunal for the determination of the question whether there was a valid job evaluation study, that Order went far beyond that which prima facie was necessary in order for that point to be litigated. The issue between the parties, essentially, is whether the job evaluation study is valid. It is clear from the passages relied on by the Chairman that the essential element of validity is whether the parties have accepted its validity.[10]In my judgment that necessitates looking at the relevant minutes and, potentially, exchanges of correspondence between the parties to what is said to be a valid job evaluation study, in order to identify whether in fact they have or have not agreed or accepted the validity of the study. It seems to me that at this stage, scorings, rankings and bandings which may have been determined as part of an exercise which may eventually fructify into a valid study, is not, at any rate at first blush, material which is necessary in order to decide whether there has been an acceptance of its validity. So on that basis, if on no other, I would be persuaded by Mr Bowers that, whilst the second category of documentation ought properly to be disclosed, the first category, namely scoring, rankings and bandings, ought not.[11]However, the problem with the Chairman's Order goes beyond that because he then goes on, having described the categories of documents, to say this:
"…recognising that a sifting and editing process may have to take place. This topic may be raised by the parties at a subsequent hearing, if there is a dispute."
It seems to me that this erroneously puts the cart before the horse. It is an Order for disclosure of documents which, by the Order itself, appears to accept it may be inappropriate, leaves it to the parties, after disclosure has taken place, to identify documents which ought not to have been disclosed, and then if they disagree about that category of documents to go back to the Tribunal for the Tribunal to determine whether it ought properly to have been disclosed or not. It seems to me that this is an upside-down way of approaching the question of disclosure and is contrary to the proper adoption of a step-by-step approach to the question of disclosure.[12]In my judgment the proper way of ordering disclosure is to order that material which at this stage appears to be disclosable, then to permit the party seeking further disclosure to identify why it is, if need be from the documentation already disclosed, that a further specific category of documentation ought to be disclosed.[13]It seems that this rather odd way of making the Order for disclosure adopted by the Chairman may have been his way of responding to an argument which had been put forward by Mr Bowers before him, concerning the sensitivity and confidentiality of the scorings, rankings and bandings, which had not, according to Mr Bowers, fructified into a valid system of job evaluation. It is right to say that in paragraph 9 of the Decision there is reference to Mr Bowers' argument to that effect. It is to be observed that in paragraph 12, which contains the essential conclusions of the Tribunal, the Chairman does not address this argument at all, and therefore one is left struggling as to what he thought of the argument – whether he accepted it or rejected it – and the way in which it was thought that the rather odd form of disclosure that was made in any way responded to it.[14]In my judgment this form of disclosure, whereby there is an order for wide-ranging disclosure, after which the parties may invite the Tribunal, effectively, to pull back from the disclosure that they have been ordered to make in respect of particular documents, or perhaps categories of documents, was an unlawful exercise by the Chairman of his discretion in case management, and I therefore uphold this appeal.[15]Mr Bowers has, in my judgment properly accepted that the proper order for the Chairman to have made was for him to have ordered disclosure of such documents which identify what has been agreed and what remains to be agreed in connection with this Green Book job evaluation study. I would add that it seems to me that, of necessity, involves minutes of what Mr Procter describes as the job evaluation steering group, and the working party of that group, together with correspondence between the parties to those groups, pertaining to the issues which the Chairman identified in paragraph 12.3 of his Decision.[16]It is, of course, implicit that if, after disclosure has taken place, the Applicants wish to mount an argument for specific disclosure of further categories of documents, they may do so before the Chairman, but having regard to the step-by-step approach. Indeed, pursuant to the procedural point made by Mr Bowers, it would be sensible of them to produce evidence in the form of affidavit, or perhaps argument in the form of a skeleton argument, as to why it is that the disclosure already ordered is insufficient for the purposes of disposing of these issues at the hearing.[17]Therefore, for the reasons which I have given, I allow this appeal.