Appeal No.	 EAT/759/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 July 1998

Before
THE HONOURABLE MR JUSTICE MORISON (P)
MRS T A MARSLAND
MR R N STRAKER

THE BENEFITS AGENCY (DSS)	APPELLANTS

MR C FORD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR KURREIN
(of Counsel)
Miss S L Smith
Office of the Solicitor
Dept of Social Security
Block 2 Spur R
Government Buildings
Honeypot Lane
Stanmore
Middx HA7 1AY	

For the Respondent	
MR WHITCOMBE
(of Counsel)
Messrs Pattinson & Brewer
Transport House
Victoria Street
Bristol BS1 6AY	

	MR JUSTICE MORISON (PRESIDENT):     This is an interlocutory appeal in relation to a complaint presented by Mr Ford against his employers, the Department of Social Security, alleging action short of dismissal on grounds related to union membership or activities, under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992.

	For the purposes of identifying the issues in the proceedings Mr Ford produced, through his trade union representative, a list of 11 actions “on which he was relying for the purposes of his complaint”.

	So far there have been three days of hearing before the Industrial Tribunal.  Mr Williams, a trade union official is representing the Applicant; Mr Kurrein of Counsel is representing the Agency and, as we understand it, the Industrial Tribunal has allowed the Applicant to proceed first with his case and, at the present moment, he is in the course of going through his evidence in the form of reading out a document or documents which contain the material on which he relies and referring and cross-referring to other documents which are then drawn to the Tribunal’s attention.

	The issue which arises on the appeal relates to the admissibility of certain other evidence, in particular in relation to action numbered 11 in the list of actions.  Essentially, the Industrial Tribunal was asked to make a ruling on the admissibility of additional evidence which Mr Ford wished to adduce.  It ruled that it should hear the evidence because when they had heard it they would be in a better position to judge its relevance and weight.  It is Mr Kurrein’s position that, if that evidence were to be admitted, which he says it should not be, it would cause yet further investigation and further witnesses to be called on behalf of the Agency.  Accordingly, the Agency have appealed the ruling made by the learned Chairman.

	In relation to the discrete issue which has been raised on this appeal we can say that it is rare for us to interfere with the discretion of a Chairman to admit or refuse to admit relevant evidence.  It is our experience that the Industrial Tribunal are best placed to decide questions of admissibility and weight and that at this interlocutory stage it is difficult, if not impossible, for us to form a better or more cogent view as to the inadmissibility and weight of evidence.  

	Furthermore, it seems to us undesirable in principle that the Employment Appeal Tribunal should interfere in the course of a hearing before the Tribunal has come to a conclusion because it may be, for example, that the evidence which is received but which is in dispute, will not carry any weight at the end of the day.  Alternatively, for various reasons the Agency may prevail in the case, in which case they would have nothing to complain about with regard to the admission of this evidence.

	However, it does seem to us, as a result of helpful submissions which have been made to us and with Mr Ford’s participation also, that there are steps which it would be desirable for the Industrial Tribunal to take for the future conduct of this case.

	We accept, having heard argument, that there is a danger that this case may run out of control.  The parties are talking of a further ten days being required for the determination of the issues in the case and the prospect of some 40 or so witnesses having to give evidence.  

	In order to assist the Industrial Tribunal we hope that these comments will be taken into account by them in deciding how this case could progress in the future.  In the first place we think it essential that the issues in the case should be properly identified.  They are, as it seems to us, as follows.

	First, was action taken.  That is, was action short of dismissal taken by the employers in this case and if so, what was it?  In relation to that first issue we understand the position to be, as I have already indicated, that the action which the Applicant relies upon is that specified in the 11 items in the letter of 15 April 1998.

	Broadly speaking, there is going to be no real issue in relation to any of those actions bar three.  The first relates to action No.3 where, as I understand it, there is no dispute that a comment was made at a meeting on 15 February 1996, but there may be issues relating to precisely what comments were made and to what effect.

	Secondly, in relation to action No.8 there will be an issue of law as to whether a failure, that is an omission, can constitute an action within the meaning of section 146.  Thirdly, in relation to action No.11 there may be an issue as to whether the action, which was allegedly taken, was taken under the disciplinary procedures.

	In order to assist in the clarification of this first issue it seems to us to be entirely correct that the Respondent Agency should be called upon to produce a written response to each of those 11 actions, stating the extent to which they admit what is said in the document and the extent to which there are issues to be determined and outlining, if there are issues, the nature of the Respondent’s case in relation to them.

	The second principle issue is whether, if action was taken as alleged in whole or in part, the action was taken against the Applicant as an individual.  

	The Industrial Tribunal will have to look with care at the judgments in the Court of Appeal in Ridgway and Fairbrother v National Coal Board [1987] IRLR 80.  It is the Agency’s contention that action taken against a person by reason of his trade union activities is not action taken against him as an individual.  It is the Respondent’s contention, in accordance with the judgment of Nicholls LJ, that adverse action taken against a union is not, by reason only of any consequential affect it may have on members or officers of the union, to be treated as action against individual employees.  To be within the section the action has to affect the employee otherwise than merely qua member or officer of a union.  

	The issue therefore as to whether the action or any action was taken against Mr Ford as an individual is likely to be a question of mixed fact and law.  In relation to those first two issues, although we would not wish to give a concluded view on the matter, since it will be a question for the Industrial Tribunal to decide in the first instance, it would appear possible, if not likely, that the burden of proof falls upon the Applicant.  That is by reference to section 146 (5) and section 148 (1).

	The third issue is, if there was action taken against Mr Ford as an individual, what was its purpose?  If it was an unlawful purpose then the complaint will succeed.  The question as to the purpose for which action was taken against the complainant is one for the employer to deal with.  Section 148 (1) requires the employer to show the purpose for which action was taken and it is important therefore for the Industrial Tribunal to bear in mind that, if they proceed to the third issue, then the employers have the burden of proof.  Because it is unlikely that the first two issues will involve substantial factual dispute and that the burden of the dispute between the parties will relate to the third issue, if that is reached, it seems to us that the parties should give evidence in relation to the third issue in the order of the employers giving their evidence first and Mr Ford giving his evidence through his witnesses, second.

	It is not always easy to divide up evidence and issues in the way that we have sought to do, and it may well be that Mr Ford’s presentation of his evidence at this time will be dealing with all three issues and that it would not be sensible for him to give evidence on two separate occasions.  But it does seem to us that, by the Tribunal stopping at the end of the evidence in relation to the second issue and then requiring the employers to produce their evidence in relation to the third issue, they will be better able to bear in mind where the burden of proof lies.

	We have been told that the Industrial Tribunal normally require witness statements, where they have been exchanged, to be read by the witness at the witness table.  We have also been told that the parties, themselves, have substantially, if not entirely, exchanged the statements of evidence of the witnesses whom they propose to call to give evidence and that such documents could be made available to the Industrial Tribunal if they have not already been.

	We are also told that there are documents which have been prepared by the Agency to which constant reference is being made in the course of the proceedings, and that the material which is provided to the Industrial Tribunal is only read by the Tribunal as and when it is asked to do so or a witness reads out certain passages.

	It seems to us that this case will degenerate and go out of control if the Industrial Tribunal does not take careful steps at this time to manage the case for the future.  We respectfully suggest that it is essential that before any new date is fixed for the resumption of this hearing that the Chairman should hold a directions hearing.  

	We anticipate that at the directions hearing he will require the Agency to respond to the 11 actions (to which I have already referred).  It may well be that he will regard it as sensible to formally require the exchange of written witness statements and to confine the evidence that can be called to those witnesses whose statements have been so exchanged.  He may well find it of assistance to invite the parties to produce for the benefit of the Tribunal, the documentation in a form which is convenient to all the parties and which has a numbering system which is firmly understood, and finally, I would respectfully invite the learned Chairman to list this case on the assumption that for at least the first day the Industrial Tribunal will take the opportunity of reading the written material presented to it which will contain the written witness statements and the documents to which I have referred, so that when witnesses come to give evidence, their evidence can be taken as read and they can then be subjected to cross-examination in the normal way, subject of course to the exercise of sensible discretion to permit a limited amount of examination-in-chief to cover any item that has inadvertently been omitted from the written statement or requires to be more fully amplified.

	If these steps are taken, we have little doubt that it will be a good investment of the Tribunal’s time.  Experience shows that a well read court or tribunal will be able to complete its judicial task more quickly than one which is acquiring the information through the witnesses as and when they come to give evidence.  On this basis we anticipate that the estimate of time and possibly even the estimate of the number of witnesses to be called can be shortened.

	Accordingly, we dismiss the appeal but give the above indications in the confident expectation that the learned Chairman will now hold a Directions Hearing and make the necessary orders as we have indicated.  I should indicate that I have refrained from making those orders myself because it seems to me that the learned Chairman in this case will be quite able to ensure that the case is managed having regard to my indications, and in a way which will enable the Industrial Tribunal to operate efficiently and effectively.