Appeal No.	EAT/450/98
		EAT/628/98 
		EAT/1351/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 February 1999

Before
THE HONOURABLE MR JUSTICE MORISON (P)
MRS R A VICKERS
MR N D WILLIS

MS N SIVANANDAN	APPELLANT

LONDON BOROUGH OF ENFIELD & OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	IN PERSON	
For the Respondents	MR C LEWIS 
(of Counsel)
Instructed By:
Mr J Cawston
Head of Legal Services
London Borough of Enfield
PO Box 50
Civic Centre
Silver Street
Enfield
Middx  EN1 3XA

and

Ms C Bates
Messrs Hempson
Solicitors
33 Henrietta Street
Covent Garden
London  WC2E 8NH	

	MR JUSTICE MORISON (PRESIDENT):  	This is an appeal against interlocutory decisions of an Employment Tribunal in the context of fiercely contested race, sex and discrimination complaints and complaints of unfair dismissal, brought by Ms Sivanandan against the London Borough of Enfield who the Employment Tribunal have determined was her employer.  She would wish also to bring proceedings against the Enfield Race Equality Council, which is an unincorporated association whose name is ERIC.  There is also a named individual who is included in the complaints as somebody that has procured or contributed to the events of which she makes complaint.

1	The position first of all is in relation to the parties to the proceedings before the Employment Tribunal.  The history of this is maybe summarised in this way:  at a time of when she was dismissed in December 1996, Ms Sivanandan did not know for sure whether she was at the relevant time employed by ERIC, or by the London Borough of Enfield, she having been seconded by the Borough to work at ERIC.  It was the London Borough’s case that she was employed by ERIC.  It was ERIC’s then case that she was employed by them, although in due course the parties’ positions changed.  Accordingly, proceedings were commenced against the London Borough and ERIC.  ERIC is an unincorporated association and technically could not be sued as such.  The only way that it could be sued would be by naming the members of the executive committee for the time being.  

2	The matter came before an Employment Tribunal on a preliminary issue to determine who was the employer.  That Tribunal determined that Ms Sivanandan had been employed at the relevant time by the London Borough of Enfield.  The unincorporated association ERIC, was separately represented and a submission was made to the Tribunal, that ERIC should be dismissed from the proceedings, and they were dismissed from the proceedings.  Ms Sivanandan applied to include within her complaint, the members of the executive committee of ERIC, and objection was then taken by ERIC’s representative, to the effect that the application was well out of time.

3	It is the Applicant Appellant’s case that she has a claim against ERIC under section 32 and 33 of the Race Relations Act 1976.  In fact section 33.  She says, that factually, she was dismissed by ERIC.  Her dismissal may have been procured by officers of the London Borough of Enfield, but essentially, in reality, it was the committee of ERIC which decided that her employment should be terminated and the London Borough of Enfield simply went along with it.  Accordingly, she was technically employed by the London Borough of Enfield.  It was important to her that the committee of ERIC should be before the Employment Tribunal because in reality it was they who took the decision and effectively implemented it.  

4	On objection being made that it was too late now to add the names of the committee members of ERIC to the proceedings, the application to amend was dismissed.  That is the first matter for an appeal.  It seems to us most unfortunate that the Tribunal should have been persuaded, as it was, to reject the case against ERIC.  It was obvious, and must have been obvious to the parties at the time when the proceedings were commenced, that it was going to be important for the ultimate determination of the issues between the parties to discover why it was that ERIC had decided that she should be dismissed; on what basis they had taken that decision and what part the London Borough of Enfield had played in relation to it, if any.  It was technically correct that ERIC does not exist as a legal entity and cannot be sued as such.  But since ERIC was represented at the Tribunal, before the names of the executive committee members had been included, it must have been plain to the Employment Tribunal that the executive committee of ERIC was before them, even though the names of those individuals had not been identified, because otherwise ERIC could not have been represented as it was.  Accordingly, the application to add the names of the members of the executive committee for the time being was an application, which should have been readily acceded to, to cure a technical defect in the entitlement to the proceedings.  

5	Mr Lewis sought to argue that this was a decision that an Employment Tribunal was entitled to arrive at, for the reasons set out in paragraph 15 of their decision of 24 October 1997, and 9(b) and 11 of the Tribunal’s decision of 23 January 1998.  We do not agree.  We consider that there was a manifest error of law and an obvious injustice done to Ms Sivanandan in the technical approach which was taken at the urging on behalf of the parties who were represented.  Accordingly, we allow the appeal and order that the numbers of the executive committee for the time being at the date when the proceedings were instituted should be named and added as parties to the proceedings, and that it will be for the Employment Tribunal to decide in due course, whether rather than having 16 names, it would be preferable to have just one person who was going to be speaking on behalf of the executive committee.  

6	There was an issue between the parties as to whether the members of the executive committee for the time being meant for the time when the act of dismissal had taken place, or the time at which the proceedings were taken, or today, if there is any question of enforcement.  Enforcement may be an issue.  The facts giving rise to this matter can be shortly stated.  As I understand it, at the date when the decision to dismiss was taken, there were 19 members of the executive committee, one of whom died, and obviously there is no need for his estate to be involved.  That left 18 people, of whom one resigned before the dismissal in November 1996, and therefore was not party to it, and one also left which left a total of 16 people.  

7	After being pressed, we were told by Mr Lewis that the position is that those same 16 individuals are members of the executive committee of ERIC, although there may be two more people who have come onto the committee since that time.  If for any reason those two members of the committee wish to be added as parties, because they are concerned about contribution proceedings which may occur in the event that Ms Sivanandan succeeds, then no doubt the Employment Tribunal will consider such an application.  As we understand the position, the members of the executive committee of ERIC are responsible in law, for the activities of ERIC.  That is a joint and several responsibility as members of the executive committee, and as one person comes off the committee and another person comes on, so there is a succession of liability.  Accordingly, as I say, that appeal is allowed.  

8	That has certain consequences in relation to the second aspect of this appeal, which relates to the question of discovery.  The nature of complaint of discrimination is largely one of victimisation as we understand it, but there is also a claim under section 1 of the Act.  The law recognises that, parties who are making a complaint of discrimination, may find it difficult to obtain direct evidence in support of their claim, and there is a statutory mechanism which entitles them to serve a questionnaire so as to find out in advance of their claim, facts and matters on which they may rely in due course, in support of their claim.  That is a different position from that which obtains in normal litigation, where a party must make out a credible case before the discovery process is undertaken.  It seems to us to be consistent with that approach to the evidential difficulties in discrimination cases, that Tribunals should be prepared to be generous in the orders for discovery which they make in cases such as these.  

9	In this case Ms Sivanandan has helpfully set out the various items of discovery with which this appeal is concerned, and I will deal with each of the items one by one.  The first item is this:  all documents and reports and notes and so on given to and which form part of the McNeal inquiry, these documents being in the power of custody and control of the London Borough of Enfield.  Surrounding her dismissal, Ms Sivanandan made a complaint to the District Auditor.  As I understand what she told me, and we make no findings of fact of course about this, as a result of the intervention of the District Auditor, the Chief Executive of the Council set up an inquiry to examine the circumstances in which she came to be dismissed.  The person appointed to carry out the inquiry was a Ms McNeal, who was a finance director currently employed by the London Borough.  She required documents to be provided to her; she examined witnesses who had any material evidence to give to her and eventually produced a report.  What Ms Sivanandan is asking for are the documents, reports and notes which form part of that inquiry.  

10	The Employment Tribunal made an order that all documents in existence at 11 December 1996 produced to the internal inquiry, conducted by Ms McNeal, should be disclosed.  But they indicated in their judgment, that in general terms, they were not ordering the production of documents that came into existence after the dismissal.  They indicated that statements and notes of evidence of those witnesses upon whom the Respondents intended to rely at the full merits hearing, should be disclosed, so as to enable Ms Sivanandan to cross examine those witnesses on any inconsistency between their evidence to the Employment Tribunal on the one hand, and their evidence to Ms McNeal on the other.  

11	In a discrimination case, whether direct discrimination or victimisation, it should be understood that there may well be documents which come into existence after the events which immediately give rise to the complaint, which may have pertinence, and may shed light on the difficult questions as to inferences to be drawn, or decisions made as to the motivation of the parties in a victimisation case.  It seems to us that, what is required by the Employment Tribunal, is for them to look at the material in relation to certain named people who Ms Sivanandan will supply (which runs to four to five names), to see whether any of the statements that those people made, and any of the notes of evidence of those people at the enquiry, will or might cast light on the motivation of those who are relevant to the issues in these proceedings.  

12	We consider that the Tribunal has to that extent misdirected itself in law by confining itself to documents which were in existence at the date of the dismissal and only allowing additional documents if the Respondents chose to call any witness.  In our view, what the Tribunal ought to have done, is to have taken a rather more liberal approach to the question of discovery, as would have been appropriate in a discrimination case, and not to shut out the possibility that there may be documents relating to witnesses whom the Respondents are not intending to call, which might cast light on the motivation of the members of the committee of ERIC and/or of the Council as the case might be.  

13	Accordingly, it seems to us with great respect to the Chairman who dealt with the discovery issues, Mr Barry, and his two colleagues, that they have taken an approach which is unacceptable in law, in that they have applied a sort of cut-off date which may do injustice between the parties.  We are not saying, and cannot say, because we have not seen the documents, that there will be anything of relevance and materiality, but it does seem to us that the Tribunal should carry out an examination of that documentation to satisfy itself, whether it may provide some useful information to the Applicant, or to the Respondents, and cast light on the motivation and intentions of those parties.  

14	In relation to the second request, which is the first draft of the McNeal Report, we are not inclined to make any order in relation to that part of the appeal.  We consider that the Tribunal were entitled to refuse to order disclosure of the first draft report.  What Ms Sivanandan says in her submissions, is that she believes as a result of what somebody has told her, possibly Ms McNeal, that the original draft report was submitted to the Chief Executive of the Council, who suggested that certain passages should be deleted.  She believes that those passages might well be of assistance to her case and therefore, it is important that she should have a copy of that document.  

15	It seems to us that the draft report is not necessary for the doing of justice between the parties.  The contents of the final report will be likely to be of peripheral importance only to the issues before the Employment Tribunal because Ms McNeal’s report represents her view of matters upon which the Employment Tribunal itself, is going to have to adjudicate.  It seems to me so much more so in the case of the first draft of the report, which was never published.  I would simply add that of course it would be open to Ms Sivanandan, and I say this without encouraging her, to issue a subpoena against Ms McNeal if she knows where she now works, and require her through that subpoena, to produce the draft report.  She should understand that she should only take that step when she is satisfied that the first draft of the report will be relevant to the issues in the proceedings.  As at present advised, even if they were relevant, we would not regard them as necessary for the doing of justice between the parties which is the second leg of the discovery of process.

16	Items (iii), (iv), (vi), (vii) and (viii) request for discovery of documents, all relate to discovery which lies against ERIC.  As I understand the position, Ms Sivanandan has already received documentation from ERIC, but suggests that there is still more to come.  In the light of our decision as to the parties, it is right that, there should be a further directions hearing before the Employment Tribunal at which any outstanding questions of discovery against ERIC can then be considered.  We propose to say nothing more about those items other than that it must be considered by an Employment Tribunal.  

17	As to head (v), the request is for all correspondence between the Borough of Enfield and the District Auditor, in relation to any of my complaints made, these documents being in the custody power of control of the London Borough.  Again, the Tribunal has ordered documents in relation to that heading up to 11 December 1996, which was the date of the dismissal, again for the reasons which we have already indicated.  It seems to us, that the Tribunal were wrong in law to have treated that as a cut-off date, and there may be documents which will need to be thought about carefully, which exist beyond that date, which are both relevant and necessary for the doing of justice to the parties.  That is something that can be explored at the same resumed hearing for directions.  

18	I will not deal with item 9 because Mr Lewis has kindly indicated that whatever the legal position is, there is no sensitivity about disclosing the document referred to.  I turn therefore to item 10, which is the copy of the letter from Mr Smith to Counsellor Bond, dated 13 January 1997.  This should not be covered by legal privilege as Mr Smith was not acting as lawyer for the London Borough of Enfield.  Cathy Swatton (Borough LBE Legal) was providing legal advice, as documents already disclosed show, “without a shadow of a doubt”.

19	The Employment Tribunal considered the privilege claim in paragraphs 5 and 6 on their decision and it was indicated that if the documents were produced to the Chairman, he would consider them and rule on whether they were protected by a privilege.  In due course, he came to the conclusion that this particular document was protected by privilege.  This is a case, where it obviously was difficult to decide whether Mr Smith was wearing one hat or another.  He was not just a lawyer.  He also had other responsibilities as a Council Officer, and it is not at all clear to us, on what basis the Chairman could have decided the question as to which hat Mr Smith was wearing when writing that letter, unless the face of the letter itself makes that crystal clear.  He could, in either of his two capacities, have been giving advice to the Council as to the employment position of the Applicant.  It would only be if he were acting as the solicitor or legal advisor to the Council, that any question of privilege could arise. 

20	It seems to us that there is potential importance to be attached to this document, although its precise importance is a matter of debate.  Neither I, nor my colleagues, nor Mr Lewis have seen the letter itself and I think that that applies to Ms Sivanandan as well.  She has been given some anecdotal statements about what is contained in that letter which might be of assistance to her case for it to be true.  

21	It appears therefore that the potential importance of the letter must not be overstated, but at the same time it should be dealt with.  It seems to us that the Chairman erred in law in the approach which he took to this matter.  The only way he was going to decide in what capacity Mr Smith was writing that letter, was to receive sworn evidence from Mr Smith about that very topic.  For that purpose, aclaim for legal professional privilege should have been made, I think, in the particular circumstances of this case, by the making and serving of an affidavit claiming privilege in the normal way.  That is what would happen in the County Court, it also happens in the High Court as well.  When that has been done then the parties can consider their position and the new Tribunal can decide what should be done.  That deals with the question of discovery.

22	I turn now to the question of Further and Better Particulars.  The Employment Tribunal has made orders for Further and Better Particulars.  This is a case which broadly speaking, in the view of the Employment Appeal Tribunal, that is myself and my colleagues, has got quite out of control and out of proportion.  There have been legal arguments about the identity of the parties, arguments about discovery, arguments about particulars, and it seems to us, that what is needed is for an early hearing date, so that the interests of justice can be served by the Tribunal themselves, adjudicating on the contentious issues between the parties.  That said, it is obviously important that before the case gets to the Employment Tribunal, the parties are not to be taken by surprise and put into a position where they cannot effectively argue their cases.  
There is a difficult balance to be drawn between requiring particularity on the one hand, and going too far, so as to render these proceedings technical, legal and pure matters of form on the other.  We have to say, with great respect to the Employment Tribunal, that looking at this case overall, the time has now come to put an end to Further and Better Particulars.  We have seen the documentation prepared by Ms Sivanandan, who is acting on her own behalf.  There is no suggestion that she has not acted in good faith in seeking to meet the various requests, which have been made.  She is faced with yet further requests for information.  She says, she has provided that information already, although not in perhaps the form which the Respondents are looking for, but she says it shouldn’t be a matter of form, it should be a matter of substance and it is quite clear, she says, on what basis she is presenting her complaint.  

23	In a sense she is saying that she had complaints about what was going on at ERIC which were not attended to, whereas complaints which were made about her, were investigated and dealt with, and ultimately lead to her dismissal.  She says therefore, that there is a marked contrast in the way that she was treated in relation to complaints, and the way others who made complaints were treated.  She says that, she was effectively being punished, by being dismissed, for the fact that, she had been complaining of discrimination.  That is her case on victimisation.  

24	The Tribunal’s order was understandable.  It was made following a request for particulars, which frankly would have been more appropriate for the old forms of action in the High Court, than appropriate for an Employment Tribunal, whose procedures are designed to give relatively easy access to unrepresented parties to make their complaints.  Mr Lewis says, this information is necessary.  He draws attention, for example, to the date of the complaint, the identity of the person to whom the complaint was made.  He says that there should be an identification of any comparator on which she relies.  

25	In theory what he has to say sounded sensible, but in reality, in our view, it was concentrating more on the form, than on the substance.  We are completely unsatisfied, that Further and Better Particulars are now required for the doing of justice in this case.  With great respect to the Chairman, he has fallen into the trap, in our view, of taking an over legalistic approach to these proceedings which are designed to be much less formal in structure.  He has been induced to take that view, because of the inequality of representation between the parties.  On the one hand, the London Borough of Enfield have been represented by Counsel and the Tribunal have been persuaded to make orders for Further and Better Particulars, which, if Ms Sivanandan had been represented, would we think not have been made.  That is because the Tribunal has taken its eye off the ball.  The main point of these proceedings can shortly be stated.  

26	This is a case where the Tribunal itself recognises that there will be an exchange of witness statements in good time before the hearing begins.  Anything that is not as clear as it should be at this time, in the pleadings, will become crystal clear as a result of witness statements which are then exchanged.  Those witness statements will be exchanged after full and proper discovery has been given, and there should be no room for doubt at all when it comes to the Tribunal hearing as to precisely what is being said.  

27	Accordingly, it seems to us to be onerous and unreasonable to expect Ms Sivanandan to serve yet further pleadings.  Those further pleadings, in any event, since they are coming from an unrepresented party, tend to go on at considerable length, and ultimately, the trial of the action will dissolve into an examination of a whole series of documents that she has prepared, comparing one with another, rather than concentrating on the main issues in the case.  There is a danger, which was observed by all three members of the court, that this case was going to descend into something of a nightmare as a result of the activities of the lawyers.

28	Accordingly, we allowed the appeal against the Order for Further and Better Particulars which was made by the Chairman.  I wish to make it plain that although there were allegations of bias, which were raised by Ms Sivanandan, and not formally abandoned, it would appear to us, from a reading of the Tribunal decisions, that Mr Barry and his colleagues have endeavoured to give proper consideration to all the issues before them.  The fact that we disagree with their approach in law to the question of discovery and to the appropriateness of Further and Better Particulars, should not be taken to imply a serious criticism of his conduct of the proceedings; indeed very much to the contrary.  Looking at the decision which was given in relation to these interlocutory matters, we would respectfully say that he is to be congratulated for the care with which he has sought to approach them.

29	That leaves the question of an application which was made to us for leave to appeal.  We regard that application as simply another step in the long legal process which has been embarked upon on behalf of the Respondents.  We consider it has no merit whatever.  It is clear that the Applicant wishes to pursue her claim against ERIC, who are in reality the people responsible for her dismissal.  The way she has been shut out from bringing those proceedings is a matter of regret.  It seems to us that it was not correct to oppose her joining the members of the committee of ERIC for the time being.  That should have been done as a matter of course, bearing in mind that she had sued ERIC and plainly had intended to sue ERIC from the outset.  

30	We therefore regard Mr Lewis’ submission that there was some difficult point of law, which needed to be dealt with, by reference to section 33 as completely misconceived.  Nor, with respect, do we consider it to be remotely arguable that we have exceeded our jurisdiction in arriving at our conclusion in relation to the parties, that somehow or other we have simply over trodden the Employment Tribunal’s decision without any legal basis for doing so.  On the contrary, it seems to us that the Tribunal manifestly erred in law in the way that it dealt with ERIC for the reasons that we have indicated.  Any pause for thought on their part, would have led them to understand that it was essential that ERIC, in its form as the executive committee and the members of the executive committee for the time being, should be joined as parties to the proceedings, so that justice can be done.  It is the most effective way.  

31	It is not without significance, that when it came to discovery, issues were taken by the London Borough of Enfield on the grounds that the documents being sought, were not in the custody or possession of power of the Borough Council but rather were in the custody of possession or power of ERIC and because ERIC was not then a party to the proceedings, those documents could not be produced without there being a subpoena against somebody from ERIC to produce them.  That shows in our view, the importance and good sense of the Employment Tribunal having ERIC there, and then deciding all the issues between the parties.  

32	Ms Sivanandan tells us that she has been under considerable stress and has found these proceedings very stressful and indeed that they are damaging to her health.  We are not in the slightest bit surprised by that.  It seems to us that that is a consequence of the way this litigation has been conducted.  The sooner it is brought to an end the better.  

33	Accordingly, the appeal on parties is allowed, the appeal on Further and Better Particulars is allowed and the appeal in relation to discovery is allowed to the limited extent that I have indicated.  There will have to be a further hearing for directions and we are sure that the Employment Tribunal will now drive this case to trial in a way which is sensible and convenient and which can do justice between the parties.  

34	I am asked to make an order for costs.  I have to be satisfied that the Respondents have behaved unreasonably. Whilst I am prepared to criticise their behaviour, I am not prepared to say at this time that they have been unreasonable. I think they may have been difficult, but not improperly difficult.  If Mr Lewis were to seek leave from the Court of Appeal and leave were to be granted, subject to any views expressed by the Court of Appeal themselves, I would be of the view that despite the pendancy of an appeal, the case should proceed before the Employment Tribunal in any event.