"An ambiguous bet is a bet which is written out by a customer in such a way as to have a number of different interpretations. This increases the customer's chance of winning because they can then claim that the winning interpretation is the correct interpretation to place on the ambiguous bet. It places the shop staff in a very difficult position because they wish to be fair to customers whilst guarding against any sort of fraud. Ambiguous bets are well known as a form of fraud in the betting industry and procedures are in place to ensure that they are guarded against."
"The Applicant is reluctant to name the Managers at this stage, since pay information was disclosed to him confidentially. However, he is confident that the pay records and trading account disclosed during the course of these proceedings, will reveal that in comparison with three other shops which were on a lesser turnover than Shop LC1975, the Manager in these shops, who were of White ethnic origin were paid more than the Applicant …"
"2. Please supply information on all managers within the London Region as at16 October 2003 , by reference to any disciplinary action taken (as requested at 6.5.7 of the RRA questionnaire). Reason for request: Our client asserts that this information is in the Respondent's possession; even though it may not be on the Respondent's system, we submit that this information must be held somewhere. Indeed, the Respondent has been able to provide full back-dated information in connection with the disciplinary action taken against the Applicant. This information is directly relevant to the issues in this case and should be disclosed. 5. Please provide pay scales for managers as at16 October 2003 commensurate with shop turnover/grades, also for the years 2000, 2001, 2002 and 2003. 10. In or around July 2002, Acting Manager Ian Prior and Jeanette McAllister accepted several ambiguous bets which led to a loss to the Respondent of around£10,000 . At this time, the Applicant collated and filed a report with the Security Department. He collated documents (including the ambiguous bets) and sent them to the security department with a brief handwritten explanation of the incident. The Applicant believes that this remains in the Respondent's possession and requests disclosure of the report. 11. Please provide a list of all bets placed on each of the dates in question (between May and September 2003) when it was alleged that the Applicant paid out on ambiguous bets."
"Please provide information on the salaries of all managers in John Casey and John Murphy's areas as at 16.10.03. Whilst your client's computerised systems may not be able to backdate, our client believes that this information is in your client's possession; indeed you have been able to produce specific backdated information in relation to our client."
"The overriding principle is that disclosure should be restricted to what is necessary in the individual case. (31:0:5)"
"This is an unreasonable request and our clients do not have a system in place so that they can obtain that information from their records. If you would provide details of a comparator our clients will check that individual's file and provide such information as they can bearing also in mind their obligations under the Data Protection Act. So far as we are aware, there is no such comparator."
"We do not have these documents."
"We do not have a Report in our possession."
"A list of bets is only retained for a period of 3 months on the system. Hard copies of all bets are only retained for one month. Of course your request would amount to approximately 4,000 betting slips. In any event we do not have these."
"Our clients have already produced the pay details of all Managers as at January 2004. This is at pages 277 - 288 of the bundle. We do not have any other documents that we can provide."
"We have dealt in entirety with their request in so far as we are able… The case remains listed for hearing commencing19 May and we certainly object to the production at such a late stage of any further documents…In all the circumstances we ask the Tribunal to set aside its order of 12 May."
"I had instructed NS (Mr Sloan) to request an adjournment on the basis of material non-disclosure. The Respondent had failed to disclose certain documents pertinent to my case, which I had requested under the Race Relations Act questionnaire and the specific disclosure process. I instructed NS that even if the Tribunal refused to adjourn the hearing, he should ask the Tribunal to draw an inference from the Respondent's refusal to disclose or state that I reserved my right to appeal to the EAT. NS failed to carry out my instructions. In fact, the Chair raised the point asking NS whether he wished to renew the application for an adjournment which he had previously made on paper…"
"The Claimant is requesting an adjournment for disclosure. He has had insufficient time to consider the trading accounts (these had just recently been disclosed) and he had not had full disclosure of certain documents (unclear which). The request was not pursued."
"The Chairman said that the Employment Tribunal was concerned over the evidence heard and looked at how an Employment Tribunal makes a decision. They looked at the documents and witnesses. Our concern looking at some of the points raised by the Claimant is that questions were not asked of the witnesses. There is a risk that the Respondents may make an application at the end of the hearing for costs. The Chairman said she would like his representative to discuss with Mr Adese whether some of the allegations is (sic) made are likely to succeed. She said she hadn't seen his witness statement and this was just an observation at this stage."
"Contrary to what the Appellant says in paragraph 2 of his affidavit the Chairman is not aware of any documents which established a prima facie case of race discrimination."
"The objective of the Tribunal in raising its concerns was to alert the Appellant to a possible risk which he was facing. We considered that it was in the interests of justice, and to his benefit, for him to be explicitly told of our concerns when they arose."
"The "cost warning" was given at about 11.45am after the Tribunal had taken a short break and before Mr Casey, witness for the Respondent gave his evidence. At 12.10pm Mr Adese was sworn and he read out some of his statement before lunch, his representative finish (sic) reading his statement for him as Mr Adese was very upset. The Tribunal then took a lunch break from 1.00 until 2.10. After lunch the Claimant's representative read out a statement agreed by his client. This statement was read out before the Claimant was cross-examined."
"The Applicant has now considered his case carefully in the light of the warning which he received from the Tribunal today. Although Mr Adese strongly feels that he was racially discriminated against on the grounds of his race. He has now decided to withdraw this claim together with the breach of contract/ unlawful deduction of wages. The Applicant considers that he is handicapped to prove these matters in law. He is of limited means and on unemployment benefit and cannot risk any penalty in relation to costs. Also, if the documents requested under the Race Relations Act questionnaire had been disclosed i.e. disciplinary records of the managers in Mr Murphy and Mr Casey's areas had been disclosed together with their salary scales / grade of their shops then it may have helped him prove his case. It is for the above reasons he has decided to withdraw the race discrimination / breach of contract / unlawful deduction."
" The withdrawal of the race discrimination and other complaints I note from the Affidavits that it was Ms Ezeonyim who finally persuaded the Appellant to withdraw the majority of his complaints. At paragraph 21 of his Affidavit the Appellant comments that we did not record the "costs warning" in our Decision. The Claimant said in a prepared statement that he was withdrawing claims through his own volition and following advice and that is recorded in paragraph 4 of the Decision. As is recorded in paragraph 17 of the Affidavit and paragraph 28 of Ms Ezeonyim's, not only did Mr Adese read out his short statement giving his decision to withdraw the majority of his claim, but also a discussion took place. The Tribunal does not recall that what was said was equivocal."
"The 'cost warning' was given at about 11.45 am after the Tribunal had taken a short break and before Mr Casey, witness for the Respondent gave his evidence. At 12.10pm Mr Adese was sworn and he read out some of his statement before lunch, his representative finish (sic) reading his statement for him as Mr Adese was very upset. The Tribunal then took a lunch break from 1.00 until 2.10. After lunch the Claimant's representative read out a statement agreed by his client. This statement was read out before the Claimant was cross-examined."
"The ET has checked: this does not mean that Mr Adese has felt compelled to withdraw but has chosen to do so on advice from his legal team."
" Mr Sloan, FRU representative The Tribunal did not notice any signs of panic or inability to use his judgment."
"Not only was he grossly incompetent in all matters but was also clearly led by the Respondent's representative. NS's performance was so poor that we suffered derision from the Respondent's representative throughout. NS's ineptitude was clear to the Tribunal. I kept hoping that his performance would improve, but it did not. Following the hearing, NS was very apologetic and asked me not to make a complaint or sue him for negligence. He said he would assist with my appeal, should I lose. I lodged a formal complaint with the Free Representation Unit regarding his conduct which is still being investigated."
"The Chairman acted with utmost patience and understanding as to Mr Adese's representative's lack of tribunal experience which was not helped by Mr Adese and his friend constantly speaking to him and passing him notes thereby interrupting his concentration. The Chairman attempted to help him by reminding him of the need to ask questions relating to the discrimination element of the claim."
"He was perfectly capable of putting a large number of questions to my client's witnesses. However, his cross-examination did relate mainly to the issues of unfair dismissal and the Chairman was clearly concerned about the manner in which the case was being run by the Appellant and his adviser."
"To the extent, therefore, that the evidence and written representations advance different assertions as to what happened before the tribunal, we have nothing more than the competing assertions on paper. We are nevertheless (in effect) asked by Mr Panton to prefer Ms Shodeke's account, and to reject the opposing accounts. Mr Panton did not explain by reference to what principle of judgment we are expected to do that. Usually, of course, in the absence of cross-examination (leaving aside those rare cases in which one side's account is so manifestly incredible that it can safely be disregarded), a court or tribunal faced with conflicting factual accounts on paper is not in any position to make findings as to which of the accounts is to be preferred."
"It appears to us in that, in those circumstances, we cannot simply choose between the rival accounts and make findings of fact about the disputed matters. That means, we consider, that Ms Shodeke's appeal on the present ground must fail, since the burden is on her to satisfy us that her complaints are justified whereas we hold that she has simply not proved them to the required standard."
"Mr Hutchinson's account of the Appellant's representative's approach more than adequately demonstrates that representative's inability to represent the Appellant competently. Mr Hutchinson accepts that the Tribunal was concerned about the way that the case was being conducted and twice invited the representative to explain why no questions had been put regarding the claim in race discrimination. (See paras. 13-15 of affidavit) It is submitted that the Tribunal ought to have noted and acted upon the fact that the Appellant was significantly hampered in his ability to pursue his race discrimination complaint in the absence of information about the treatment of potential comparators which had in fact been the subject of the request for specific disclosure. (See paragraph 9 above). In addition, the Appellant's representative had failed to put such questions as could have been put in relation to comparators notwithstanding the non-disclosure. In the circumstances it was the tribunal's duty, in the interests of fairness, to resolve the disclosure issue and/or to put questions relevant to the Appellant's comparators to the Respondent witnesses if it believed that the Appellant's representative was culpably failing to do so."
"There is no like duty in civil actions in the courts, even if the plaintiff is a litigant in person. It is every judge's frequent experience that more points are taken in a plaintiff's pleadings than are pursued at the trial and I cannot believe that a plaintiff who fails at the trial to take and prove a claim made in his pleadings could at the appellate stage successfully contend that the trial judge erred in law if he did not draw that claim to the plaintiff's attention to see if it had been abandoned."
"Many litigants in the industrial tribunal appear in person or with lay representatives and despite the wide discretion given to the tribunal by rule 9 (1) it is conceivable that the courts might have recognised a duty such as that implicitly found by the Employment Appeal Tribunal. However a long and consistent line of cases gives no encouragement whatever to the existence of such a duty and consistently with the procedural rules, which apply in the same way to unfair dismissal or redundancy cases and to discrimination cases, there has been no difference of approach between the two types of cases."
"It certainly is not enough, in our judgment, that the point was not taken owing to a wrong, or what turns out in the light of after events to have been a wrong, tactical decision by the appellant or his advocate. It would certainly not be enough that the omission was due to the lack of skill or experience on the part of the advocate. It would certainly not, we think, be enough that the omission could have been made good had the industrial tribunal chosen to suggest the point for consideration to the appellant or his advocate. It is well established in these tribunals, and we hope in this appeal tribunal, that where the representation is a non-professional representation, or possibly even where it is an inexperienced professional representation (if such a thing can be conceived), in listening to an argument put forward by an advocate or evaluating a point of law put forward by an advocate, the tribunal will be as helpful as possible, perhaps by itself refining and improving the argument, perhaps by suggesting to the advocate that the argument might be put in a different or more favourable fashion, something of that sort. But we think that it is very far from the duty or indeed the practice of the chairman of industrial tribunals that they should be expected to introduce into the case issues which do not figure in the presentation on the one side or the other, at any rate in normal circumstances."
"We think that it is a wrong view of the obligations of an industrial tribunal. They are a tribunal resolving a dispute inter partes . Of course, if one party is totally inarticulate the Tribunal will do what it can to see if that party has got an arguable case, and if it has, to do justice to that case. But the obligation of putting forward the case is upon the party."
"First, they consider that this case falls within the general principles recognized in Kumchyk v Derby County Council , supra, that a point not taken in the industrial tribunal cannot be taken in the Employment Appeal Tribunal even though the failure to take it below was due to lack of skill or experience of the advocate and that the omission could have been made good had the industrial tribunal chosen to suggest it for consideration."
"We regard it as important that the principles set out in Kumchyk v Derby County Council be upheld, and not eroded by qualifications based on inferences which a chairman of an industrial tribunal might make. In saying this the majority would not wish to cast any doubt on the propriety of the long-established practice whereby chairmen of industrial tribunals give assistance where it is needed in the formulation and presentation of the cases of persons before them, be they applicant or respondent, who have not got the benefit of professional representation and indeed on some occasions when they have such representation. But this must be a matter for the judgment of the industrial tribunal in each individual case and should not be erected into an obligation which if not fully complied with leads to a conclusion that an error in law has been committed."
"It is with diffidence that I reach a conclusion different from that reached by the Employment Appeal Tribunal, with the present President presiding, on a point relating to the procedure of industrial tribunals, and my misgivings are greatly increased by the fact that a former President, Mummery LJ, would not have given leave to appeal. But for the reasons which I have given, I have reached the clear conclusion that the Employment Appeal Tribunal was not entitled to find an error of law by the industrial tribunal in this case. I would strongly encourage industrial tribunals to be as helpful as possible to litigants in formulating and presenting their cases. It is always good practice for industrial tribunals to clarify with the applicant (particularly if appearing in person or without professional representation) the precise matters raised in the IT1 which are to be pursued and to seek conformation that any others so raised are no longer pursued . But it must be for the judgment of the particular industrial tribunal in the particular circumstances of the case before it whether of its own motion it should investigate any pleaded complaint which it is for the litigant to prove but which he is not setting out to prove. In XvZ Ltd[1998] ICR 43 at p.54, Waite LJ referred to the rule that the tribunals themselves are the best judges of case management decisions. The Employment Appeal Tribunal has done precisely what Knox J rightly said should not be done, namely to erect what is a matter for the judgment of the industrial tribunal into a duty leading to a conclusion that an error of law has been committed when that duty has not been complied with. There was no such duty and accordingly there was no error of law."
"I too would strongly encourage industrial tribunals to be as helpful as possible to litigants in formulating and presenting their cases, particularly if appearing in person. There must, however, be a limit to the indulgence which even litigants in person can reasonably expect. The desirability in principle of giving such assistance must always be balanced against the need to avoid injustice or hardship to the other party on the particular facts of each case. This, in my judgment, is a very good reason for holding that the manner and extent of such assistance should generally be treated as a matter for the judgment of the tribunal and not as subject to rigid rules of law. In the present case, the Trust was in my judgment reasonably entitled to expect that the tribunal would in its decision be dealing with only those issues which had been covered by the directions of29 June 1994 and Mrs Mensah's oral submissions and evidence."
"Unless and until the Regulations of the employment tribunals are amended to deal with this point, it would be advisable for employment tribunals, on being notified of the withdrawal of an originating application, to ask the applicant for a statement of the circumstances of the decision to withdraw before deciding whether to make an order dismissing the proceedings."
"In my judgment, a tribunal must be particularly careful not to place undue pressure on a litigant in person. A party who is legally represented has the opportunity for his representative to put any remarks by the tribunal in context. For example, the legal representative can explain the circumstances in which a tribunal is entitled to and may make a costs order. A tribunal should only make costs warnings such as were made in the present case where there is a real risk that an order for costs will be made against an unsuccessful Claimant at the end of the hearing."
"Against this background the 'costs warning' was unfair. It left Mrs Gee in no doubt (and in my judgment would have left any reasonable litigant in person standing in her shoes in no doubt) that if she continued and lost she was at a real risk of a substantial order for costs being made against her and that it might well be enforced against her house. Both she and her husband were unemployed. She simply could not afford to take the risk. There is no doubt that it was this that caused her to withdraw her claim and in my judgment the Employment Appeal Tribunal was correct in concluding that the pressure was unfair and accordingly that the employment tribunal acted unlawfully."
"While plainly there cannot be one rule or legal principle for litigants in person and another for those who are represented (see Divine-Bortey v London Borough of Brent[1998] ICR 886 ;[1998] IRLR 525 , 529 per Simon Brown LJ), it does not follow that an employment tribunal is entitled to treat every party as if it had the strength of advice and representation which, for example, Shell (UK) Ltd enjoyed in this case. Inexperienced lawyers may not be a match for experienced ones; lay representatives may not be a match for lawyers; some lawyers may not be a match for a clever litigant in person or an experienced lay representative. The tribunal's job, precisely because it cannot guarantee equality of arms, is to ensure equality of access to its processes for sometimes disparately powerful parties. This involves making a careful appraisal, case by case, of the parties and their respective capabilities. It must also, however, involve ultimate equality of treatment, so that whoever presses on with a doomed case after due warning faces the same risk on costs."
"The all-important dividing line identified by Maurice Kay J in the EAT below was between on the one hand 'robust, effective and fair case management' and on the other 'inappropriate pressure and unfairness'. As, however, the judge recognised, that line cannot be a sharp one: costs warnings cannot properly be characterised as having applied 'inappropriate pressure' or as being 'unfair' unless no reasonable tribunal would have given them. Given the obvious need for 'robust and effective case management' which might sometimes positively require a costs warning, there must be a wide margin of appreciation (a substantial area of discretionary judgment) open to the tribunal as to when and in what terms the warning should be given. It seems to me that only if it is perfectly plain to the reviewing court (be it the EAT or the Court of Appeal) that the tribunal has overstepped the bounds of propriety will an appeal on this basis succeed. And similarly it seems to me that that hurdle will not be cleared unless the reviewing court is satisfied that the warning was given in circumstances in which there was in reality no possibility of any costs order being made, or at any rate no possibility sufficient to justify the actual warnings given. One cannot, of course, consider only the question whether any costs order might possibly be made. It is necessary also to consider the possible extent of any such order and the terms in which the warning is given. It would be no less wrong to warn a litigant of the risk of a whole costs order being made when in reality only a limited or specified order could possibly become justified. Equally, it would be wrong to give the impression that a costs order was probable if in reality it was at most conceivable."