Appeal No.	 EAT/112/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 September 1997
Judgment delivered on 19 January 1998

Before
HIS HONOUR JUDGE J HICKS QC
MR D CHADWICK
MRS E HART

MR A B BUTLER	APPELLANT

(1) BUCKINGHAMSHIRE COUNTY COUNCIL 
(2) WYCOMBE DISTRICT COUNCIL (trading as Pro-Leisure)	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR C HENNEY
(of Counsel)
Messrs Henmans
Solicitors
116 St Aldates
Oxford
OX1 1HA	
For the Respondents	MISS J EADY
(of Counsel)
Legal Services Dept
Bucks County Council
County Hall
Aylesbury
Bucks
HP2B 1UA	

JUDGE J HICKS QC:  Mr Anthony Butler, the Appellant, was employed by the Buckinghamshire County Council, the First Respondent, as a swimming teacher for 19 years at the Wycombe Sports Centre.  In 1994 the County Council decided to transfer the provision of the swimming instruction services in which Mr Butler was employed at Wycombe to the District Council, the Second Respondent.  That was a transfer to which the Transfer of Undertakings (Protection of Employment) Regulations 1981 applied and had Mr Butler still been employed there by the County Council at the date of transfer his employment would under Regulation 5 have continued on the same terms and conditions under the District Council.  Before the date of transfer, however, his employment came to an end.  He alleged that that was by dismissal and complained to the Industrial Tribunal that it was an unfair dismissal.  The Respondendents' case was that it was a consensual termination, precipitated by Mr Butler's unwillingness to work for the District Council.  The tribunal found for the Respondents on that issue and an appeal to another panel of the Employment Appeal Tribunal was dismissed on 24 January 1997.

Mr Butler had also made a claim against the Respondents under the Equal Pay Act 1970, and an appeal in relation to that claim was listed before the Employment Appeal Tribunal at the same time as the unfair dismissal appeal, but there was not enough time to deal with it and it was adjourned.  It is with that adjourned appeal that we are concerned.

Mr Butler's case on his Equal Pay Act claim, so far as disclosed before the date of the hearing at the Industrial Tribunal, appeared from a letter which he wrote to the County Council on 27 September 1994, of which the most relevant part read:

“A few years ago whilst at a swimming seminar at Green Park I found out during conversation that my colleague at the Marlow pool was allowed 15 minutes changing, administration and clearing up time at the beginning and end of each session.  I was under the impression that it was 15 minutes at the beginning and end of each day which is what I was claiming for all those years, the equivalent to 71/2 [sc. to be read as ‘7½’] minutes which was never adequate.  The difference between this allowance was 30 minutes a day, 2 hours over 4 days.”

In response to further enquiries he gave the date on which he learned of the disparity in pay as Spring 1987 and the name of the colleague as Mrs Hilda Jones.

The equal pay claim was dealt with at some point on the second of the two days of the hearing before the tribunal.  At the request of the tribunal Miss Eady made some preliminary observations on behalf of the Respondents and referred to one of the documents.  Mr Butler then gave evidence.  His account of the relevant 1987 conversation with Mrs Jones, as noted by the chairman, was that when he mentioned the 15 minutes changing time at the beginning and end of each day she contradicted him, saying "No; it's for each session".  He said that he spoke to a Mr Alwork (presumably a member of management) about it in "the summer of 1988/89" and gave evidence of further  complaints by telephone or letter, including letters of 6 January 1992, 6 July 1993 and 27 September1994 in the bundle.  He also referred to correspondence after his departure and to other documents.

Mr Butler was cross-examined.  He agreed that Mrs Jones' employment lasted until April 1991.  He agreed that there was a variation between what Mrs Jones had written in a form which she had completed and signed at his request about a week before the hearing and what she had said in 1987.  (The form reads: "Also allowable 10 minutes before and after each full session for changing [etc].")  He was also cross-examined about other facts and documents and finally "added one or two points on his own account", which seem to have included further evidence but to have been chiefly in the nature of submissions on the effect of the evidence as a whole.

At the conclusion of Mr Butler's case on the equal pay claim the chairman announced that the tribunal did not wish to hear evidence or submissions on behalf of the Respondents and unanimously dismissed the claim.  It is common ground that the chairman characterised Mr Butler's evidence on this issue as "anecdotal".

On 17 November 1995 the Industrial Tribunal published a written Decision and Extended Reasons.  The relevant words in that Decision were: "The applicant was not dismissed and the application fails".  The Reasons were wholly concerned with the unfair dismissal claim and make no mention of the equal pay claim.

On 29 November 1995 Mr Butler requested a Review.  The letter of request is wholly concerned with the dismissal of his unfair dismissal claim and makes no reference to the equal pay claim in the context of the Review, nor does it ask for Reasons for its dismissal.  On 4 December 1995 the application for a Review was refused.

On 27 December 1995 Mr Butler gave Notice of Appeal in relation to both claims.  He pointed out that equal pay was not mentioned in the Extended Reasons.

On 1 August 1996 the County Council wrote to the Registrar here drawing attention to the lack of any written Decision or Reasons in respect of the equal pay claim and suggesting a directions hearing to determine what should be done.  On 24 September the Registrar replied, stating that by direction of His Honour Judge Peter Clark the appeal should proceed to a full hearing.  If the respondents accepted the ground of appeal that the Industrial Tribunal failed to adjudicate on the equal pay complaint then it would be open to the EAT to remit that complaint to an Industrial Tribunal to be heard and determined.

A copy of that letter was sent to the Regional Secretary for Tribunals, who replied on 29 October with the comments of the tribunal chairman.  After reciting briefly the course of the hearing of the equal pay claim and the absence of any reference to its dismissal in the written Decision and Reasons the letter continued: "To rectify this the chairman has directed that a decision and extended reasons be issued."  There was then a period during which the chairman was ill, but on 9 December he signed a Decision and Extended Reasons dismissing the equal pay claim.

Meanwhile Mr Butler's solicitors, who were by now conducting his appeal, were objecting to that course on the ground that no decision had been made, and wrote to the Regional Secretary on 18 October with a copy of their letter to the County Council to that effect.  The reply dated 8 November pointed out that the tribunal did give a decision and stated that "the chairman thinks that he is obliged to give the reasons for it, albeit belatedly", and that position was maintained on 21 November after a further letter from Mr Butler's solicitors dated 11 November.

Mr Butler's solicitors then sought directions from the Employment Appeal Tribunal, and the Registrar replied on 10 December , setting out a substantial reasoned direction by His Honour Judge Peter Clark, of which the crucial paragraph was:

“In my judgment it would be inappropriate for the Chairman to take the course which he proposes now that the appeal tribunal is seized of the matter.  We shall want to hear argument from the parties to the appeal as to the extent of the Chairman’s powers to produce further written reasons once a decision has been promulgated.  One of the questions which arises is whether he has given a ‘decision’ within the meaning of rule 10 on the equal pay claim; and if so, what are his powers of reviewing that decision?”

Having emphasised that he expressed no concluded view on the issues to be argued on the appeal Judge Clark concluded:

“... my direction is that the Chairman should stay his hand until after the appeal is heard and determined.  In giving that direction I bear in mind the observation of May LJ in Leverton v Clwyd County Council [1988] IRLR 239, paragraph 33, where he said:
‘... in my respectful opinion an appeal to the Employment Appeal Tribunal should be decided upon the Industrial Tribunal’s reasons as originally drafted, and I deprecate any procedure whereby these may be supported or enlarged by any direct communication between the Industrial Tribunal on the one hand and the Employment Appeal Tribunal on the other’.”

As is clear from the narrative above, however, the Decision and Extended Reasons of 9 December 1996 had by then been published.  There is no suggestion that the chairman was aware of or intended to flout Judge Clark's direction, or acted otherwise than in entire good faith.  

On 28 January 1997 Mr Butler, by leave, amended his Notice of Appeal.  The amended grounds relevant to the equal pay appeal are as follows:

“(a)  The oral decision of the Tribunal given on 31st October 1995 was a nullity in view of the Tribunal’s failure to provide written reasons for its decision within a reasonable time.
(b)  In the alternative the written decision promulgated by the Tribunal on 17th November 1995 was the recorded decision of the Tribunal.  The Tribunal failed to give written reasons in respect of the equal pay complaint (being part of my application which was dismissed) and this omission amounts to an error of law.
(c)  Further, or in the further alternative, the Tribunal erred in law in dismissing my equal pay complaint without hearing evidence and/or submissions from or on behalf of the First or Second Respondents in that I had advanced an arguable case which was neither frivolous nor vexatious.  The Tribunal further erred in law in dismissing my evidence as ‘anecdotal’ in that this did not amount to a sufficient indication that there was no case to answer.”

Grounds (a) and (b) require consideration of the relevant provisions of Rule 10 of the Rules set out in Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993.  They are as follows:

“(2)  The decision of a tribunal, which may be given orally at the end of a hearing or reserved, shall be recorded in a document signed by the chairman.
(3)  The tribunal shall give reasons for its decision in a document signed by the chairman.  That document shall contain a statement as to whether the reasons are given in summary or extended form. ...
(4)  The reasons of the tribunal shall be given in summary form except where -
(a)  the proceedings involved the determination of an issue arising under or relating to the [Equal Pay Act] 1970 ...”

Rule 3(1)(c) of the Employment Appeal Tribunal Rules 1993 is also relevant.  It requires an appeal from an Industrial Tribunal to be instituted by serving on the Appeal Tribunal (inter alia) a copy of the extended written reasons for the decision of the Industrial Tribunal. 

We turn to the grounds of appeal.  It is important to note at the outset that they do not include any allegation that the tribunal reached no decision, an allegation which was being advanced by the appellant's solicitors in correspondence as an objection to the furnishing of reasons by the chairman, and the existence of which was given as one of the reasons for Judge Clark's direction.  It does not, however, appear in the original or amended Notice of Appeal and before us Mr Henney accepted, in our view rightly, that there was a decision rejecting the equal pay claim, given orally at the hearing in accordance with Rule 10(2).

The first ground of appeal is that that decision became a nullity upon the failure of the tribunal to provide written reasons for it within a reasonable time.  That cannot be right, for a number of reasons.  In the first place it would be wholly unfair to the successful party to proceedings if the decision duly arrived in his favour were at risk of being nullified at some uncertain future date by an omission or default on the part of the tribunal for which he was in no way responsible and which he had no power to prevent.  Secondly, the Rules impose no time limit, and although reasons are usually given promptly it is possible for quite lengthy delays to occur because of illness or from less excusable causes; it cannot be supposed that in such cases a time comes when the decision in some unexplained fashion fades away.  Thirdly the purpose of reasons is to explain to the parties why the decision was reached, and in particular to enable the losing party to consider whether there is any ground for appeal and to demonstrate to the Employment Appeal Tribunal, if it be the case, that the Industrial Tribunal has erred in law.  The remedy of a party wishing to appeal and aggrieved by delay is to apply for extended reasons; that is indeed incumbent upon a proposed appellant when only summary reasons are required by Rule 10(4) and have been given and is equally open to him if extended reasons should have been given in the first instance (as here), but have not.  We see no merit in encouraging or rewarding a tactical silence in such circumstances; the appellate procedure is part of the process by which tribunals and courts seek to do justice between the parties according to the law, not a game of forfeits between the appellant and the chairman of the Industrial Tribunal.

That conclusion is supported by the reasoning of the Employment Appeal Tribunal in Jowett v Earl of Bradford [1977] ICR 342.  There an Industrial Tribunal had reached a decision in favour of the applicant, announced orally, but the chairman was taken seriously ill before reasons had been prepared.  The application was then reheard by a differently constituted tribunal and dismissed.  The Employment Appeal Tribunal held that the second tribunal had no jurisdiction to hear the complaint, since a decision had already been reached.  So far, the case goes simply to the "no decision" point abandoned by Mr Henney.  There are, however, passages in the judgment which bear on the "nullity" point.  At page 345F Kilner Brown J refers to the absence of reasons as "the mere fact that the various procedural steps were not followed".  The judgment also clearly envisages that at that stage (already ten months after the original decision) reasons for it should if possible be furnished, either by the chairman if sufficiently recovered in health (page 344D), or failing that in some other way, for example by the lay members (page 346E), but that in the last resort all that can be required is that the first tribunal "comply as far as possible with the rules of procedure" (page 346D - our emphasis).

We therefore reject the first ground of appeal.  The second ground, as expressed in the amended Notice of Appeal, is that the document of 17 November 1995 was "the recorded decision" of the tribunal, and that the failure to include in it written reasons for the dismissal of the equal pay complaint was an error of law.  As argued, however, it developed along rather different lines, and raised what is in our view the only serious procedural issue in this appeal.  Mr Henney's submission was that the document promulgated by the Industrial Tribunal on 17 November 1995 was both the recorded decision required by rule 10(2) and the extended reasons required by rule 10(3) and (4)(a) in respect of the equal pay claim as well as the unfair dismissal claim, or purported to be so, and as such (i) was defective, and (ii) could not properly be supplemented or made good.

Whether that document was or purported to be the recorded decision on the equal pay claim we need not decide for the purposes of this appeal, although we do not believe that it was or did.  Whether it contained the extended reasons for dismissing that claim or purported to do so, however, is crucial, since we entirely accept Mr Henney's consequences (i) and (ii) above.  Its defectiveness follows from the very fact relied upon by the Respondents as showing that it did not contain the reasons at all, namely the omission of any reference to the equal pay claim.  As to (ii) we, like Judge Clark, have in mind the principle embodied in the words which he cited from the judgment of May LJ in Leverton v Clwyd County Council (supra).

The question therefore is whether, in truth, the document of 17 November 1995 can fairly and properly be characterised as containing the tribunal's reasons for the dismissal of the equal pay claim, or as purporting to do so.  In our judgment it plainly cannot.  The point is incapable of useful elaboration.  There is simply no reference whatever in the document to the equal pay claim nor anything in its contents or in the surrounding circumstances to found any inference that the tribunal had it in mind or led the parties to believe that it had.  Everything points to a simple and complete oversight and omission.  

Mr Henney pointed to the danger that late reasons, especially after an appeal has been lodged, may improve upon or otherwise amend what was truly in the mind of the tribunal when the decision was reached.  There are four answers to that point.  The first is that it cannot possibly justify distorting the facts by finding that reasons were given at a date when in truth they were not.  The second is that the rules themselves require the reasons to be in writing and therefore, in practice, to be produced at an interval after the announcement of the decision if, as is permitted by the rules and we understand often happens, that announcement is made orally before the parties disperse.  In such circumstances it cannot possibly be the case that the reasons must be confined to and exactly reflect what would have been said had they been delivered ex tempore, even if that were ascertainable.  The third is that the reasons need never postdate the grounds of appeal, and should never do so if the appellant complies with the rules.  As we have already pointed out rule 3(1)(c) of the Rules governing appeals requires a copy the extended reasons to be served with the Notice of Appeal.  Under rule 3(2) the 42 day time limit for instituting an appeal does not begin to run until the extended reasons are sent to the appellant.  Finally, and in fairness to the members of the Industrial Tribunal which heard Mr Butler's applications, we should record our clear impression and belief that the reasons given in this case on 9 December 1996 reflect, as accurately as the fallibilities of human memory permit, those in the minds of the members when the decision was reached, without elaboration or improvement.

We therefore reject that ground of appeal also and turn to the third, and only substantive, ground, which is that the tribunal erred in law in dismissing the equal pay complaint without hearing evidence or submissions from the employers, and in that  their characterisation of Mr Butler's evidence as "anecdotal" was not a sufficient indication that there was no case to answer.

For the first part of this ground Mr Henney relied on two authorities.  In Oxford v Department of Health and Social Security [1977] ICR 884 the applicant had complained of sex discrimination on the part of the respondent in rejecting his job application.  As in most such cases the overt facts were not in any significant dispute; the issue was whether the inference should be drawn that the employer had discriminated against the applicant.  His complaint had been dismissed by the Industrial Tribunal and his appeal was dismissed by the Employment Appeal Tribunal.  In giving the judgment of the appeal tribunal Phillips J said:

“The second matter that the complainant raises is, he says that the onus of proof is - or, if it is not, ought to be - upon the respondent, because the applicant cannot know all the facts and it is difficult for him to make his case.  We recognise the difficulties, but there is no doubt that, although the Act of 1975 is silent upon the burden of proof, the formal burden of proof lies upon the applicant.  That having been said, it should be recognised that in the course of the case the evidential burden may easily shift to the respondent, and we draw attention to, and would wish to commend, the attitude adopted by the industrial tribunal in this case.  In their reasons they said:
‘At the conclusion of the [complainant’s] case, we were inclined to reject his claim on the basis that no case against the [employers] had been established.  Nevertheless, bearing in mind the difficulties the [complainant] faced; we decided to hear evidence from the [employers] and to give the [complainant] every opportunity to examine their witnesses and question them on matters he considered important.’
It seems to us that that was a very proper course to have adopted, and we would recommend it as being the course which in most circumstances is the right course to adopt.  It further seems to us that, while the burden of proof lies upon the applicant, it would only be in exceptional or frivolous cases that it would be right for the industrial tribunal to find at the end of the applicant’s case that there was no case to answer and that it was not necessary to hear what the respondent had to say about it.”

The second authority is Humphreys v Board of Managers of St George's Church of England (Aided) Primary School [1978] ICR 546.  The applicant complained of sex discrimination in the rejection of her application for a higher scale teaching post.  The Industrial Tribunal dismissed her complaint at the close of her case without hearing evidence from the respondent employers.  The Employment Appeal Tribunal allowed her appeal.  In giving the judgment of the appeal tribunal Phillips J referred to Oxford v DHSS, quoted the second part of what is set out above from the judgment in that case and continued:

“We repeat and endorse those observations.  In truth an application of this kind, and the nature of the hearing before an industrial tribunal, if justice is to be done, must partake of something at all events of the nature of an inquiry into what has gone on.  We do not say, we cannot say, that in no circumstances at all can the industrial tribunal, having heard the applicant, say “That is enough:  we wish to hear no more.”  But such a course should be reserved, we think, for what we described as exceptional or frivolous cases.  It does not seem to us that this case falls within that category.  Here was a lady against whom nothing had been said, who was far and away the better qualified educationally, and who had by far and away the longer relevant service.  In those circumstances we think that the industrial tribunal would have been wiser, and it could have been expected that they would have thought it better, to hear what the employers or the representatives present had to say about it.”

Mr Henney says that since this case was neither "exceptional" nor "frivolous" it should not have been dismissed before the employers' evidence had been heard.

As to those cases we first note the disclaimer in Humphreys, with which we agree, of any rule of law that a tribunal cannot in any circumstances dismiss a claim at the close of the applicant's case.  Once that is accepted the decision of a tribunal in a particular case to do so can, like any other of its decisions, be set aside on appeal only if wrong in law; guidance by this appeal tribunal as to general categories of circumstances in which it will or will not be appropriate to take that course is just that - guidance - it is unlikely to be exhaustive and departure from it cannot of itself amount to an error of law.

Secondly we note that both of those cases arose under the Sex Discrimination Act and, like so many such cases, turned on the inferences to be drawn as to the respondent's intentions and motives from largely undisputed overt facts.  Moreover, as was pointed out by Phillips J in an earlier part of his judgment in Oxford than that quoted above, much of the information relevant to the drawing of those inferences is known only to the respondent.  The present case was one under the Equal Pay Act and, more importantly, was one in which the central issue was the purely factual one whether Mrs Jones' pay and conditions were more favourable than Mr Butler's.  It was for Mr Butler to prove that fact on the balance of probabilities.  It was not in dispute that they were in directly comparable jobs.  In those circumstances many of the special features leading this appeal tribunal to discourage early dismissals of discrimination claims in cases like Oxford and Humphreys did not exist; the situation here was quite closely comparable with that in many of the cases in which submissions of "no case to answer" are commonly entertained and disposed of in courts of law.

That being so we reject the submission that the Industrial Tribunal's decision not to hear the respondents' evidence must be wrong in law because the claim was not made frivolously or vexatiously and was not otherwise "exceptional", which Mr Henney glossed as meaning "having no possible prospect of success".

We therefore come finally to the second part of the third ground of appeal, which does at last address the question whether there was any identifiable error of law on the face of the reasons which the Industrial Tribunal gave for its decision.  The relevant passage is paragraph 15 of those reasons, paragraphs 7 to 14 having been occupied by a full recital of the course of the hearing on this complaint, including Mr Butler's evidence:

“The claim was based on a comparison with a lady who left the respondent’s employment as long before as April 1991 and was replaced by a male.  The testimony of Mr Butler, based in effect on a conversation which he had in 1987 was, as the Chairman was quoted as saying at the hearing, no more than anecdotal.  It is not Mr Butler’s fault that documentation relating to the employment of Mrs Jones was no longer available but we do not draw adverse conclusions against the respondents on that account.  It is for him to make out his claim under the Equal Pay Act 1970 and in our view he has not done so and the application fails.  That is our unanimous decision.”

In our view the tribunal, although it does not use the exact words, is there plainly finding that there was no case to answer, or in other words that on the evidence called by the Applicant alone, even in the absence of any evidence to the contrary, he had not discharged the burden of establishing his complaint on the balance of probabilities.  That was the right test in law and in applying it the tribunal fell into no error.

The only specific consideration advanced for the Appellant against that conclusion turns on the use of the word "anecdotal".  It is common ground that in addition to appearing in the extended reasons it was actually used by the chairman in announcing the tribunal's decision at the hearing.  "Anecdotal" is one of those words which, having had a precise use in a particular professional or technical context, then acquires a vogue status in general use which may lose touch with the context which gave it that precision.  In the context of scientific research anecdotal evidence is that which arises from events (especially, perhaps, if striking and therefore memorable) outside the ambit of experiments or observations organised with a view to enabling the consequences of changes in the variables under study to be identified, distinguished from those of changes in extraneous influences and measured.  That precise meaning has no direct application to the issue before the Industrial Tribunal, but it does carry the connotation that in the scientific sphere anecdotal evidence is of no significant weight, and that was of direct relevance to the tribunal's decision.  In our view its use in the context of the issue before the tribunal can and should fairly be understood in that sense.  On that basis it supports, rather than detracts from, the conclusion that the tribunal was applying the correct test and did not err in law in reaching its decision.

Mr Butler's appeal against the dismissal of his equal pay claim must therefore be dismissed.