Glasgow City Council v Fox Cross Claimants & Ors (Practice and Procedure : Amendment) [2013] UKEAT 0004_13_2003

EAT
Glasgow City Council v Fox Cross Claimants & Ors (Practice and Procedure : Amendment)
[2013] UKEAT 0004_13_2003 · 2013-03-20
[1]It is well established in case law, most recently in the case of O’Cathail v Transport for London [2013] EWCA Civ 21 that; see paragraph 11:
“In the case of an appeal from a statutory discretion entrusted to and exercised by the ET, the EAT can only set aside the ET’s decision on the ground of an error of law such as when the ET goes wrong in principle in its approach to the discretion or when it makes a decision which is so wrong that no reasonable ET properly directing itself could have made it on the material before it.”
[2]For reasons, delivered on 13 December 2012, a Tribunal at Glasgow chaired by Employment Judge Cape exercised its discretion to permit an amendment which was sought by the Claimants before it and ordered consequential disclosure. The challenge before us is made on the basis that in doing so the Tribunal erred in principle such that within the scope of the law as we have set out we should allow the appeal and reverse the decision or remit it. The Context[3]The case is on any view a substantial one. It is the second wave of equal pay claims brought against Glasgow City Council by, amongst others, Claimants represented by Fox Cross Solicitors. The issue, as part of those proceedings before the Tribunal whose decision we are considering, was the question of whether the Work, Pay and Benefits Review (WPBR) gave rise to disparities in pay as part of the material which the Tribunal had several days to consider. It had as a central point to ask whether the scheme which had been adopted by Glasgow City Council was one of job evaluation so as to fit within the margins of section 1(5) of the Equal Pay Act 1970 and whether, if it did, the Council could appropriately rely upon it in order to use it as a defence to equal value claims brought by those whom the scheme said had been rated as in equivalent jobs.[4]Summarising, we hope without losing sight of the complexity of the case, the Claimants wished to contend as a central issue that the scheme adopted did not properly evaluate jobs. Rather it used role profiles which were, in the Claimants’ submission, of too generic and general a character to evaluate the totality of the jobs which the individual workers did. The Council called evidence from amongst others a Dr Watson who had designed the scheme. He had not, however, allocated individual jobs within the scheme. The scheme consisted of 14 job families, each job family itself comprising a number of role profiles. These did not in themselves describe specific jobs. Rather, each profile was said to be a generic description of the work of employees whose work was judged to correspond to the role profile.[5]In the course of cross-examination Mr Galbraith-Marten of counsel, representing the Fox Cross Claimants, asked Dr Watson how he justified the allocation of what were on the face of it very different jobs to the same role profile. Thus he asked in effect how it came about that, for instance, the job of a parking attendant could be allocated to the same role profile as a crèche assistant. The assumption had been made, it might seem, that the title of the job would be sufficient to indicate how widely different the jobs were, that therefore the role profile was too generic to be of any real assistance in evaluating the jobs and that, therefore, the scheme based upon them could not possibly hope to fulfil the requirements of section 1(5), nor could it operate as a defence under section 2A(ii)(a) to equal pay claims brought against the Council.[6]At this point, Mr Bowers of Queen’s Counsel who represented Glasgow City Council objected. He made the undeniable point that without having more than a label to describe the roles there was no proper basis on which Dr Watson could be asked that question: it was widening the issues, it was going beyond what had been agreed by the parties as the issues; it was seeking to make comparisons outside a list of Claimants and comparators which had been painstakingly drawn up over the course of several months between the parties and which had been common currency at least at the end of a series of some eight or nine case management discussions prior to the hearing with which we are concerned.[7]Mr Galbraith-Marten for his part asserted that he was fully entitled to raise the issue since it arose out of the pleadings. The pleadings at the amended Particulars of Claim, paragraph 22 and following set out the Claimants’ general case in respect of job families and role profiles. The question he was asking came within the scope of those pleadings.[8]The issues had been agreed between the parties, in a short issues list of high generality (see paragraph 18 of the Tribunal decision) as including the question whether the job evaluation scheme was valid as defined in section 1(5) of the Equal Pay Act and, if so, whether the Respondents were entitled to rely upon it for the purposes of section 2A(ii)(a). The issues were not more precisely stated.[9]Following an exchange between the Judge for the Tribunal and the parties, the Tribunal indicated that it might be appropriate, if the Respondents were to be asked to address the points and questions asked in cross-examination, that the assertions which were being made by the Claimants were set out in writing and that that should be way of amendment to their application and particulars of claim.[10]Without abandoning his primary position that this was not strictly necessary, Mr Galbraith-Marten drafted what would be an amendment. It was that amendment which the Tribunal focused on and permitted. It is that permission that is now challenged. The amendment is set out at paragraph 9 of the Tribunal decision. It mentions four different groups of jobs; Pupil Support Assistant and Float 8 SVQ Assessor, both of which have been allocated to one role profile; Child Development Officer and Driving Instructor allocated to another role profile; Parking Attendant, Crèche Assistant to a third; Cleaner, Road Worker, Road Sweeper and Gardener to a fourth.[11]At the time this application was made the Fox Cross Claimants had all but closed their case. As the Tribunal observed the application was made part way through the hearing and more precisely part way through the Respondents’ case. One matter had been reserved for the Fox Cross Claimants but effectively their case had closed. The Tribunal was thus considering an application to amend made very late in the day. 20 days of hearing had gone past, it came after a number of Case Management Discussions, and was in respect of a case first brought in 2009 about a scheme introduced on 1 April 2008. The parties had been professionally represented throughout. For some five months the Claimants had had an Excel spreadsheet setting out details of jobs from which the details of the jobs sought to be grouped together in the same job profile could be ascertained. If there were a need for further enquiry that could then have been identified at that stage.[12]There was thus much to be said for the City Council in seeking to object to something which was likely to cause it some difficulty if proceeded with there and then. The Tribunal’s Reasons[13]The Tribunal took the view, see paragraph 66, that what had occurred was not a deliberate ambush by the Claimants of a witness for the Respondent. There was no concealment deliberately of the point. Secondly, it had regard to the case of Traynor ; we shall come back to that decision.[14]It regarded the purpose of the amendment as creating no cause of action, nor did it identify any new claim. It was essentially an evidential amendment to support a pleaded contention. The view of the Tribunal as expressed in the decision was that (see paragraph 51) the City Council had not been given fair notice of that part of the Fox Claimants case which concerned the allocation of particular jobs to role profiles. As we have observed, the point was made generally but not by reference to the specific categories in respect of who Mr Galbraith-Marten asked the offending questions.[15]The Judge had regard to a matter upon which both English and Scottish authority coincides, though it has to be said with rather greater emphasis north of the border. That is that it is an essential aspect of fairness that a party should be made aware of the case it has to meet. Unless told sufficiently and sufficiently clearly of the nature of that case the party should not be expected to meet it. We regard that principle as axiomatic.[16]The way in which the Tribunal sought that that be done here was by requiring an amendment to be carefully drafted so that there was sufficient clarity and so that the evidence which was required was sufficiently circumscribed so that the case could be efficiently pursued. It was an essential aspect of ensuring fairness.[17]The Tribunal in its reasons noted that there was no time bar here, there being no new cause of action or new claim asserted by proposed amendment. It regarded the lateness of the amendment plainly in a way which was adverse to the application’s success but not, as it said, fatal to it. It is accepted that an amendment can be made at any time during a case. At any times means what those three words say. But we accept, as it appears to us did the Tribunal below, that the later the application is made the greater will be the reluctance of a Tribunal to accede to it, though that will largely be because the prejudice allowed by granting it is likely to be all the more.[18]The Tribunal adjudged that the case was not one of mistake of a kind which had been considered in the case of Beddoes v Birmingham City Council ; that was a reference a case in which the Judgment was dated 9 May 2011 before Underhill J as President of this Tribunal. Like this case, it considered mass equal pay litigation. Claimants had in their ET1s mis-described the jobs which they were doing at their material times. Those who had done so subsequently sought permission to amend or correct the error. There were 14 appeals by Claimants to whom such permission had been refused by the Tribunal.[19]The Appeal Tribunal allowed the appeal to permit the mis-description to be corrected. In doing so it stated at paragraph 13:
“In the context of mass litigation it is inevitable that mistakes will occur in relation to job titles, particularly where the titles themselves are so multifarious and often only finally distinguish one from another. Subject to the question of any prejudice caused to the Council or any specific points as to jurisdiction, we believe that a Tribunal should be very ready to allow the correction of such mistakes. An individual who by reason of such an error is prevented from pursuing her claim or her best claim in circumstances where her colleagues claims are proceeding will feel an acute and legitimate sense of injustice, whereas for the Respondent the fact that one claim out of thousands may not proceed or proceed on all the basis available is a matter of marginal significance. In our Judgment, it makes no real difference in this context whether the effect of the amendment sought can be said to substitute a new cause of action except, again, to the extent that that raises a jurisdictional issue or that it causes real prejudice to the Respondent […] The fact is that it was a mistake. Litigation is not a game and it is not the business of courts or Tribunals to punish accidental error that has not created any real prejudice or risk to justice being done.”
[20]Neither advocate before us complains that the Tribunal was wrong to regard this case before us as not being a case of mistake in the Beddoes sense.[21]The Tribunal went on to look at a number of considerations. It did so in the light of rejecting the submission made by Mr Galbraith-Marten during the course of the hearing that the need for amendment arose by a mistake. It concluded rather (paragraph 73):
“The amendment before the Tribunal arises from a strategic or, perhaps, tactical decision on the part of those acting for the Fox Claimants to proceed on the basis that all that it was necessary to do to put the Fox Claimants case fairly and effectively was to cross-examine Dr Watson on the basis that it was self evident from the job titles alone that the jobs that were mentioned were so different that they could not have been allocated to the same role profile if the methodology employed by the Respondent was to satisfy the requirements of section 1(5) of the Equal Pay Act. No evidence was led by the Fox Claimants as to the work of the newly identified jobs.”
[22]Having identified why it was that the amendment had been made late, the Tribunal took into account that the case was one of massive proportions, took the view that the number and potential value of the claims worked both ways when considering an amendment, saying at paragraph 75 in relation to that:
“On the one hand, as the EAT in Beddoes shows ‘in the context of mass litigation it is inevitable that mistakes will occur in relation to job titles …’ there would be a “an acute and legitimate sense of injustice” if such a mistake prevented a Claimant from pursuing a claim. On the other hand this is mass litigation conducted by expert solicitors and Counsel who ought to be adequately resourced to take on litigation in this scale and of this value and to take steps to ensure the soundness of their judgments as to the way in which the case may best be put.”
[23]It observed that there had been an Excel spreadsheet, which it commented was surprising had not been recovered rather earlier, but that it was also surprising that there was nothing to suggest that it had not been interrogated (it meant by the Claimants) so as to give up its treasures “long before” the hearing was underway.[24]It then, plainly, as we see it, looked at the prejudice which granting or refusing the amendment might cause. One obvious aspect of prejudice was time. Any additional evidence, particularly if called or if the need for which arises late in the day is likely to cause the expenditure of further time. As to that, the Tribunal already knew that there would be further hearings in the same case in both February and May (see paragraph 69) and at paragraph 78 it noted that it plainly had in mind that the additional days might be accommodated then. If not it was likely that steps could be taken at that stage, some five months in advance, to minimise any delay. It thus took into account the possibility of delay, but took the view that on the basis of that which appeared to it at the time any delay would be minimal. It was asked to consider expense. It thought no specific additional expense would be incurred in consequence of allowing the amendment and if it did there could be an application made at a later time in respect of it.[25]It noted that there was nothing specific said to it which suggested that witness evidence which might have been available had the amendment been made sooner was now unavailable. It examined the prejudice caused by the late timing of the amendment. At paragraph 82 it sought to balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. It considered the balance to favour allowing the amendment and explained in addition to the points already made as follows:
“82 … The Fox claimants predicate the application to amend on the contention that an examination of the work associated with the job titles mentioned in the amendment will serve to demonstrate that the Respondents’ methodology is based on a flawed design concept so as to defeat the Respondents’ contention that the material jobs were evaluated under a study of the kind mentioned in section 1(5) Equal Pay Act. Whether the evidence will show what the Claimants say it will is, at this stage, unknown. It may turn out that the evidence will provide the Respondent with a firmer foundation for its contention that it employed a section 1(5) compliant methodology. Unless the evidence is heard, however, the Tribunal will be put to deciding this case without that evidence and doing so may visit injustice on one party or the other. Further, the Tribunal has not heard from the respondent that specific difficulties have arisen that may lead to prejudice or that there are significant additional expenses that the respondent will have to bear. 83 The Tribunal takes into account that the claimants mount an attack on the Respondents’ pay and grading system going beyond the pay of the particular Claimants in the case and that until this matter has been determined there will inevitably be uncertainty as to whether that system will stand, require to be tweaked or require root and branch reform and that uncertainty may sound in the minds of individual employees as well as in the broader industrial relations context. 84 In the Tribunal’s assessment refusing an amendment that might lead the way to the Claimants showing a breach in the right to equal pay exposes the Claimants to a greater risk of hardship and injustice than that to which the Respondent would be exposed by allowing the amendment.”
[26]In making the point the Tribunal did at paragraph 82, it was echoing an observation made by the Judge during the course of argument in which he asked the advocate, “How can we make findings fairly without knowing the facts?” The Appeal[27]The appeal argues that the Tribunal failed to take into account relevant considerations and took into account irrelevant considerations. In doing so it reached a conclusion which was inimical to the overriding objectives. The way in which it was put to us by Mr Bowers, of Queen’s Counsel, was to argue that the wide discretion which the law recognises has to be granted a Tribunal in making a decision of this type does not answer the question whether the Tribunal has applied the right principle of law.[28]Here he submits the Tribunal was wrong in principle because in essence it took into account matters which it should not have done and left out of account matters which it should have taken into account. Thus, in considering an application made late for an amendment the Tribunal had to take into account the reasons for that amendment. He relied upon the words of this Tribunal in the case of Ladbrokes Racing Ltd v Lawrence Stephen Traynor UKEATS/0067/06, a Judgment of 3 October 2007 given by a Tribunal which included Mr Pagliari, a Member of the current Tribunal, and in which judgment was delivered by Lady Smith. At paragraph 20 the Tribunal said this:
“20 When considering an application for leave to amend a claim, an Employment Tribunal requires to balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing. That involves it considering at least the nature and terms of the amendment proposed, the applicability of any time limits and the timing and the manner of the application. The latter will involve it considering the reason why the application is made at the stage that it is made and why it was not made earlier. It also requires to consider whether, if the amendment is allowed, delay will ensue and whether there are likely to be additional costs whether because of the delay or because of the extent to which the hearing will be lengthened if the new issue is allowed to be raised, particularly if they are unlikely to be recovered by the party who incurs them. Delay may, of course, in an individual case have put a respondent in a position where evidence relevant to the new issue is no longer available or is of lesser quality than it would have been earlier. These principles are discussed in the well known case of Selkent Bus Co Ltd t/a Stagecoach Selkent v Moore [1996] IRLR 661 . Further, as was also observed by the President, Mummery J, as he then was, in Selkent at paragraph 26: ‘ …an application for amendment made close to a hearing date usually calls for an explanation as to why it is being made then, and was not made earlier, particularly when the new facts alleged must have been within the knowledge of the applicant at the time he was dismissed and at the time when he presented his originating application.’ 21 Even more must it be the case that an application to amend in the course of a hearing calls for a full explanation as to why it was not made earlier.”
[29]We note at this stage that both counsel, for their own purposes, seek to rely upon those words. We, as will be apparent from our judgment, adopt them. We note that the Tribunal specifically directed itself by reference to them. Mr Bowers takes from them not just that the reason must be established why the application is made late but that the Tribunal must consider the quality of that reason. Unless a Tribunal considers that the reason is a good reason it is omitting a matter to which it should in principle have regard. It is right that in the statement of principle at paragraphs 20 to 21 in Traynor there is no express requirement that a Tribunal should exercise an evaluative judgment as to the quality of the reason. Mr Bowers’ case is that it is implicit. Secondly, he argues that here the Tribunal made no such evaluation. Next he argues that this was a case in which the Tribunal wrongly took into account that the massive proportions of the case sounded both ways when considering an amendment; see paragraph 75 which we have already cited. Further, he argued that it should have taken into account the fact that the Excel spreadsheet had been disclosed some time before and that it failed to draw any material against exercising its discretion to allow the amendment from the fact, which it found to be surprising, that the spreadsheet had not been interrogated earlier so as to give up its treasures.[30]The Tribunal had failed to recognise and weigh the injustice properly and adequately as, for instance, demonstrated in the case of Ahuja v Inghams [2002] ICR 1485. He argued that weighing process here had been inadequate. The Tribunal had not sufficiently considered the prejudice caused by the likely passage of time. This was a case in which each week in which the Tribunal continued and therefore each week its judgment was delayed represented a further week of uncertainty for Glasgow Council as to whether its workforce pay and benefits review was a valid scheme. He had argued that very point to the Tribunal. There was a real risk that the May tranche of hearings would not be sufficient to accommodate the additional two or three days which would be needed to hear the additional evidence occasioned by the amendment.[31]He argued that it had been the intention of the parties demonstrated through the case management discussions and list of issues drawn up prior to the hearing that there should be a closed list of Claimants and comparators and not a developing one. The danger was one of “mission creep”: in his words, that a case put on one basis was, he said, potentially allowed to become a bagatelle.[32]The additional expense had not been properly taken into account, nor had the fact that the application was made as late as it was when the Claimant had already closed its case on any sensible view. The Tribunal should not have taken into account that the size of the case could tell in favour of granting the amendment. Accordingly, he submitted, taken individually or collectively those factors meant that this Tribunal had erred in principle in the way in which it had addressed the amendment. Discussion[33]This Tribunal in Traynor correctly stated the central principle to be applied when considering an application to amend in the first sentence of paragraph 20. The question is whether the balance of justice is in favour of allowing the amendment. It will inevitably cause injustice and hardship. The question is whether that is greater against granting the amendment or greater in permitting it. The other matters to which Lady Smith drew attention were explanatory of that overall and central principle. She recognised in the second sentence at paragraph 20 that it is effectively impossible to draw up a complete checklist; cases will vary. That is why we have no doubt the Tribunal used the words “it involves considering at least…” and then the factors which followed. Those factors inevitably will fall to be considered.[34]Here there was no question which arose as to the nature and terms of the amendment. There was no question of time limits. But the manner of the application did fall for consideration. Of the matters which Mr Bowers argued the Tribunal had not taken proper account, Mr Galbraith-Marten for his part asserted that the Tribunal had. If he is right in that then the principle with which we began this Judgment must inevitably apply. Whatever our own decision as to the amendment might have been, the Tribunal’s decision would stand since it cannot in this case be said to be perverse. Mr Galbraith-Marten has satisfied us that on each of the points which Mr Bowers complained the Tribunal did take the matter said not have to been considered into account and did not impermissibly taken into account the one matter which he said it should not have done. There is one slight qualification to that: that is the first point which Mr Bowers made. He argued that the Tribunal had not established what the reason was for the lateness of the amendment. It did do so at paragraph 70 in the first sentence: it said it was doing so and the critical words are perhaps the last three in that sentence. It was looking there specifically at the lateness of the amendment. It came to a conclusion as we have pointed out at paragraph 73. It did not, however, say whether in its view that was a “good” or a “bad” reason. It gave no express evaluative judgment about it.[35]We do not think that the absence of an evaluative judgment in this case means that the overall judgment which the Tribunal reached which was, as we have noted, a question of balancing the justice and injustice on both sides, was improperly reached. We note that despite the list of matters which this Tribunal identified in Traynor , there was no express requirement that the Tribunal assess the quality of the reason. There may be good reason not to since the ultimate question to be determined is not one of penalising the conduct of a party for having a bad reason for seeking an adjournment if, on balance of justice and injustice, it would otherwise be permitted. Thus, in Sefton NBC v Hincks [2011] ICR 1357 at paragraph 13 Underhill J said:
“As we observed in Beddoes v Birmingham City Council it is particularly important in this kind of mass litigation to observe what is in truth a general principle, namely that amendments should not be denied purely and punitively and where no real prejudice will be done by their being granted.”
[36]He was looking, as do we, for the overall question of whether prejudice and its opposite had been balanced. Mr Bowers does not seek to argue that an amendment should be denied purely punitively. He does, however, argue that there is more to the matter than that and that having a bad reason for making an application late is part of the picture which the Tribunal must take into account.[37]We consider in relation to that submission that a Tribunal Judgment needs to be read as a whole. Here it is clear to us that the Tribunal took considerable care to set out in detail its reasoning for and against granting the amendment and came to a conclusion which was not perverse. It plainly rejected the explanation of mistake which had been advanced by the Claimant. It thus plainly had in mind the nature of the reason for seeking the amendment and for the matter having come to light requiring it so late in the day.[38]It, in our view, must have had in mind a view which did not in our judgment require to be expressed separately and specifically as to that reason, but the main question it had to resolve was not whether the conduct of the Claimant’s was reprehensible but whether justice overall to both parties, balancing the hardship to each, required that the amendment as proposed be granted. That it did decide, not on one issue alone, amongst many, but taking all together in context.[39]As to the second proposition that the claim could not be said to sound in favour of the Claimant on the ground of its massive proportions, again we consider that the totality of the Judgment needs to be reviewed. This was a case in which that very size meant that there was no significant delay which was likely because of the already established need for there to be a further hearing in May and the likelihood as the Tribunal Judge saw it at the time that if additional time was needed and could not be accommodated within that period that further dates could be sought in good time such that delay was minimal. It is also plainly something that he had in mind in reviewing, as the Tribunal did, at paragraph 82 the balance of injustice and hardship.[40]As to the Excel spreadsheet, that was something again which went to underpin the point made, quite properly, that the question asked in cross-examination invited further evidence at a very late stage when the need for it might have been apparent much earlier. That is no more, as we see it, than emphasising the late nature of the amendment which it is plain the Tribunal was at pains to consider and to put heavily in the balance in favour of rejecting it: similarly the intention that there should be a closed list of Claimants and comparators. Mr Galbraith-Marten points out that the effect of the amendment is still to circumscribe carefully the extent of the evidence which is likely to be available; two to three days only will be needed as we have pointed out.[41]The problem of additional expense is dealt with in paragraph 79; the fact that the Claimants had closed their case in paragraph 81. The argument that prejudice was not weighed properly is dealt with at both paragraphs 69 and 78. It is plain to us that the Tribunal expressly considered the prejudice to each party; it said so. It looked at issues of prejudice not just in paragraph 82 which began with that express recognition but in the paragraphs which preceded it.[42]The conclusion to which it came was one which, in the light of that, we consider was based on no wrong statement of law. We accept that on each of the specific matters which it is said the Tribunal left out of account, the Tribunal said that it was taking them into account and made sufficient reference to them to satisfy us that it must have done so. It follows that the conclusion not having been plainly perverse, whatever another Tribunal might itself have concluded in similar circumstances, this Tribunal was entitled to approach the central issue as it did.[43]Given the very wide scope of the discretion which is permitted, we see no proper basis here for supposing that the Tribunal erred in law. It follows that this appeal, despite the way in which it has been attractively presented by Mr Bowers, must be rejected. Skeleton Arguments in Scotland at the Appeal Tribunal[44]During the course of the preparation for this hearing we were asked to consider a skeleton argument produced by Mr Galbraith-Marten. It was dated yesterday. There is a difference of approach in Scotland and in England as to the use of skeleton arguments; in England the Appeal Tribunal will always order skeleton arguments and will make provision that they be provided some several days in advance of the hearing. That is important because it means that they can be sent out to the lay members who generally find a well drafted and reasonably succinct skeleton argument to be of great assistance in helping them to begin to consider the case. That assistance is no different whether the case is in Scotland or in England. But in Scotland there is no general requirement which is insisted upon by order that the parties produce a skeleton argument; that corresponds with the general approach in civil litigation in Scotland.[45]The English practice has begun to infect, if that is the right word, cases in Scotland. Although there is no obligation for a party to provide a skeleton argument, if a party thinks that one would be useful then it is essential, in our view, that it be submitted a good time in advance of the hearing and certainly in sufficient time for the lay members and the Tribunal to consider it fully as part of its advance reading for the hearing. We hope that those parties who wish to take advantage of what is in a case such as this a very useful process will bear those words in mind and ensure that if they are going to offer a skeleton argument they do please do so a good time in advance.