Appeal No. EAT/0686/01 & EAT/0687/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 June 2001

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
MR P R A JACQUES CBE
MR R N STRAKER

MRS D FEARN	APPELLANT

THE HOME OFFICE	RESPONDENT

Transcript of Proceedings

JUDGMENT

INTERLOCUTORY HEARING

	APPEARANCES

For the Appellant	MR PAUL MICHELL
(Of Counsel)
Messrs Coningsbys
Solicitors
87-89 High Street
Croydon
Surrey CR9 1XE	
For the Respondent	MISS C D'SOUZA
(Of Counsel)
Treasury Solicitors
Queen Anne's Chambers
28 Broadway
London SW1H 9JS	

MR JUSTICE LINDSAY

1.	We have before us as an Interlocutory matter the appeal of Mrs D Fearn in the matter Fearn v The Home Office and today Mrs Fearn appears by Mr Michell and the Home Office appears by Miss D’Souza.  The matter has a rather odd procedural background.  It came before us on Friday last, listed wrongly as if for a preliminary hearing because it had not been adequately recognised at the Employment Appeal Tribunal that it was truly an Interlocutory matter and accordingly that it should have gone straight to an inter partes hearing.

2.	On Friday last Mrs Fearn appeared by Mr Glynn of Counsel and when he was asked whether the Home Office had been served he pointed out that, no, the matter had been listed as a preliminary hearing and was accordingly ex parte.  Fortunately, sitting at the back of the court was a representative of the Home Office, not someone legally instructed to represent them but simply a note-taker, and she was kind enough to make contact, at our request, with the Home Office and with her assistance and that of Mr Glynn it was arranged that there should be a hearing today.

3.	There was some need for speed because the substantive hearing of the case is listed for 5 September and, with holidays on the brink, that is not very far away.  We are grateful therefore to both Mr Michell and Miss D’Souza for coming in at short notice and assisting us with the case.

4.	The history of the matter begins on 25 August 2000 when Mrs Fearn lodged an IT1 for racial discrimination and unfair dismissal.  She had by then been employed for over 8 ½ years by the Home Office.  She was, in fact, still employed by them, which was plainly going to put her claim for unfair dismissal in some jeopardy.  It was a hand-written IT1; Box 11 gave a brief outline of some complaints relating to events on two days – 22 and 27 June 2000.

5.	On 6 October there was an IT3 from the Home Office.  It refers to “Grounds of Resistance” but it is far from clear whether any grounds of resistance were in fact annexed.  If they were, they must have been extremely rudimentary.

6.	On 13 March of this year Mrs Fearn wrote a long letter to the Employment Tribunal inter alia asking the Tribunal to vacate the date fixed for the hearing, namely 14 and 15 March, and instead to make those dates a directions hearing and asking them at that directions hearing for leave to amend her IT1, leave to serve a race discrimination questionnaire and for some direction that the Home Office should be obliged to supply a more detailed IT3.

7.	On 15 March that hearing did take place as a directions hearing and directions were given orally.  Miss D’Souza was there and it does seem that there is some ground for accepting that what was said orally at the time was not quite what emerged ultimately in the Order that we will come on to.  Mrs Fearn was present on 15 March in person – she had no one representing her at the hearing.

8.	On 27 March the decision of the Tribunal, relative to that hearing of 15 March, was sent to the parties.  It was:

“Having heard the Applicant in person and Miss D’Souza – Counsel on behalf of the Respondent - and having identified that the issues arising in this case are as set out in the First Schedule to this order and having discussed the matters necessary to ensure an expeditious and fair hearing of those issues, I make the orders and directions as set out in the Second Schedule.”

9.	So far as issues are concerned, they were set out in that First Schedule divided into three.  The first sub-division seems to be directed, speaking very broadly, to direct racial discrimination.  The second is as to victimisation under Section 2 of the Race Relations Act 1976, (although it is incomplete because a date is left out) and (iii) says:

“Whether the Respondents made an unlawful deduction from the Applicant’s wages by suspending her, the Applicant thereby losing her acting-up allowance and opportunity to earn overtime.”

Given that (i) is direct discrimination and (ii) victimisation, this (iii) would seem to have been regarded as a separate and free-standing cause of action.

10.	The issues there specified in that First Schedule go well beyond those in the IT1.  There is no express leave to amend the IT1 but those described issues go beyond it.  As for directions for further particulars, paragraph 1 of the Second Schedule says:

“On or before fourteen days from the date of this order, the Applicant shall supply in writing to the Respondent, with a copy to this office, particulars of the Originating Application as listed in the Third Schedule to this order.”

11.	Amendment to the Notice of Appearance is a particular topic:

“…the Applicant’s shall within 2 months of the date of this order file with the Respondents a copy of a medical report…”

and that is set out.
12.	Service of the questionnaire is a matter we need to refer to.  It is a separate heading in paragraph 4 of the Second Schedule:

“The Applicant wishes to seek leave to serve a questionnaire Race Relations (Questions and Replies) Order 1977 out of time.  The Applicant is to send within 10 days of date of this order to the Chairman a copy of the proposed questionnaire, and the Chairman will then consider whether to grant leave for service out of time.”

13.	There were directions for disclosure by list and preparation of trial bundles and so on, including provision for witness statements.

14.	The subjects to be dealt with by the further and better particulars were set out in a Third Schedule and that, too, seems to contemplate that unlawful deduction of wages was seen as a free-standing separate cause of action because the first paragraph of the Third Schedule says:

“Full particulars of all acts events on which the Applicant relies to support her allegation of direct race discrimination and victimisation and unlawful deduction from wages, in the latter case giving details of the exact amount alleged to have been unlawfully deducted and the basis of the calculation.”

15.	Mrs Fearn was also required, amongst other things, to identify the comparators she was relying upon.  The Order had a conventional footnote warning that non-compliance could lead to a party being barred from either attacking or defending, as the case might be.

16.	On 4 April the Appellant’s solicitors wrote to the Employment Tribunal and sent a copy of the proposed race discrimination questionnaire and also an amended IT1 with a large Box 11 headed ‘Details of Complaint’, several pages long and plainly intended to set out what the nature of Mrs Fearn’s complaint was intended to be.

17.	On 6 April there expired the 10 days (which had been limited by the Chairman to run from 27 March), during which period the proposed questionnaire was to be sent to the Employment Tribunal.  Since Coningsbys, the Appellant’s solicitors, had sent the questionnaire on 4 April there is no reason to think that that 6 April limit had not been honoured.

18.	On 25 April the Chairman refused leave to file a race discrimination questionnaire; no reasons were given.  The matter was then taken up again by the Appellant’s solicitors on 25 April.

19.	On 8 May, switching to a different subject, the Employment Tribunal said that leave was not given earlier for an amended IT1 but, in effect, instead for further and better particulars only and that, in so far as particulars had been served, they were acceptable.

20.	On 9 May the Appellant’s solicitors wrote again, as they did on 15 May.  On 21 May the Employment Tribunal said that the IT1, in its proposed amended form, was an attempt to widen the issues and that that was why the amended IT1 had been refused leave.  On the same day the Tribunal wrote to say that the race discrimination questionnaire, like others, needed to be served within time limits and that the Chairman had been given no good reason for extending time and hence that the leave to file it had earlier been declined.

21.	On 23 May an amended IT3 was put in by the Home Office and it is significant in that it accepts that Mrs Fearn was discriminated against and was victimised but it is denied that the discrimination or victimisation was upon racial grounds.  Even in amended form, which had been delayed because of an internal Home Office enquiry, it still remains a somewhat terse document.

22.	On 5 June Mrs Fearn’s solicitors lodged a Notice of Appeal taking up two points; the 25 April refusal of the Tribunal to give leave to file a race discrimination questionnaire and the 8 May refusal of the Tribunal to allow an amended IT1.

23.	On 26 June the Treasury Solicitor wrote to the Employment Appeal Tribunal to say that as a substantive merits hearing was fixed for 5 September, the Interlocutory appeal needed to be listed in good time before that day.  Unfortunately, as I mentioned at the outset, no sufficient notice was taken of that warning and the matter did not come on until Friday last and then as a preliminary hearing.

24.	Since then there has been, on 2 July, a complaint by the Applicant’s solicitors as to the Home Office’s failure to supply specified documents but we do not I think need to go into that for the moment.

25.	As to the appeal relating to whether or not there should be an amended IT1, there was originally the home-made IT1 of 25 August and some informal looking particulars, if that is what they could be called, that are part of a 1 ½ page document coming from Mrs Fearn’s side, headed ‘Case Reference 2304675/2000’ and running into 10 paragraphs.

26.	The reason why the IT1, in amended form, was refused was indicated by the Tribunal, as we mentioned earlier, in their letter of 21 May; they said this:

“In his order the Chairman sets out the issues; the amended Originating Application is an attempt to widen the issues.  The Chairman does not give leave to make such an amendment.  That is why the Chairman instructed the clerk to respond in the terms of the letter of 8 May 2001.”

It is, of course, very often the entirely proper function of an amendment to widen the issues and it cannot be right to refuse leave to amend simply on that ground.
27.	The Tribunal should have asked itself such questions as: whether the widening was appropriate; whether the widening would jeopardise the hearing fixed for 5 September; did the widening nonetheless include reasonable issues properly needing to be explored and ruled upon between the parties; did the Home Office allege that it would be likely to suffer any material prejudice from the widening; would it, in fact, have suffered any material prejudice from the widening; if the only prejudice was cost, could Mrs Fearn meet it?  That sort of question should have been looked at rather than simply whether the Originating Application was an attempt to widen the issues.

28.	Moreover, it is now accepted between Counsel that, save in 1 clear respect and 1 less-clear respect, the proposed amendment did not, in any event, widen the issues.  Miss D’Souza concedes that there was no extension or widening of the issues save as to breach of contract and, possibly, as to unlawful deduction of wages. Mr Michell concedes that, as to breach of contract, there was no jurisdiction and that that ground should be struck out in any case.

29.	It seems to us that when the Tribunal said “That is why the Chairman instructed the clerk to respond in the terms of the letter of 8 May”, that means that all that was in consideration was that the Originating Application was an attempt to widen the issues.  That was an error of law and to that extent we are entitled to and do set aside the decision of the Chairman on that point.  The matter has become greatly simplified since by reason of the concessions that I have mentioned.

30.	But there are two clarifications that need to be mentioned in the proposed amended IT1 which, as I mentioned, is framed in the form of an enlarged Box 11.  By reason of Mr Michell’s concession, paragraph 20 headed ‘Breach of Implied Terms of Trust, Co-operation and Reasonableness’ comes out.
31.	That leaves, as the only remaining issue on the pleadings (to call them that) the issue of unlawful deduction of wages.  It is not clear (and Miss D’Souza, who was at the original hearing, tells us how unclear it was) whether unlawful deduction of wages truly had been ventilated as a free-standing cause of action and it is even less clear whether the Tribunal directed its mind on that day to whether, if it was a free-standing cause of action, it was in or out of time.

32.	However, both sides are very keen that we do not remit that matter to the Employment Tribunal as that, everyone fears, might jeopardise the hearing of 5 September.  So what we do with that part (paragraph 21) is remit to the Employment Tribunal that hears the full substantive matter the issue of whether unlawful deduction of wages can, in the premises, exist as a separate free-standing cause of action and, if they can and if paragraph 21 is a proper way of framing that independent cause of action, whether it is out of time and, if it is out of time, whether leave should be given for an extension of time.

33.	All that, it has been agreed between Mr Michell and Miss D’Souza, is best left as a preliminary question for the full substantive hearing.  Whether the Tribunal hears it first or later will be a matter for them.  We set aside the Tribunal’s refusal to allow an amended IT1 and order that it be allowed, that it be served forthwith but leaving over, as we mentioned, paragraph 21.

34.	Now we turn to the other issue, which is the issue of the race discrimination questionnaire.  They are made possible and admissible by Section 5 of the Race Relations Act 1976.  The prescription of a timetable for them is to be found in the Race Relations Question and Replies Order 1977, which we have in mind but do not need to read out.

35.	The way in which the learned Chairman’s order was framed, which we read out as being paragraph 4 of the Second Schedule, is that he invited the Applicant within 10 days of the date of the order (that was to say 27 March) to send a copy to him of the proposed questionnaire and then, to quote the rest of the part of the Second Schedule:

“…and the Chairman will then consider whether to grant leave for service out of time.”

36.	So, presumably, it was his sight of a copy of the proposed questionnaire within the next 10 days that was going to enable him to decide whether to grant leave for service out of time or to refuse it.  He was not asking for evidence to be filed on the point or for a further oral hearing, or anything of that nature, but simply for a copy of the proposed questionnaire.

37.	That means that the sort of issues that he must have had in mind as determinative of whether leave should be given were issues that would have been resolved upon a sight of the proposed questionnaire; issues such as whether it was prolix, whether it was irrelevant, whether it was oppressive.  In fact, that 10-day period was honoured, as we pointed out earlier, and yet the ultimate reason for declining the service of the questionnaire was given in the letter of 21 May as follows:

“A race discrimination questionnaire must be served within the time limits.  The Chairman has not been given any good reason to justify granting leave to serve out of time.”

38.	In other words, it was not prolixity or oppression or irrelevance or anything of that nature but simply the passage of time that eventually barred the service of the questionnaire.  That seems to us to be completely untenable given the form of order on 27 March.  If, at 27 March, the Chairman had said that the matter was already out of time one could have understood the position.  But the formal order was looking only to the contents of the questionnaire as being further determining factors as to whether it should be capable of being served or not, and yet it was time only, as it transpired, that barred it.

39.	That seems to us to be an error of law.  It is very fair to add, in defence, so to speak, of the Chairman’s decision, that, since then, the amended IT3 has indicated that the Home Office admits there was discrimination and admits there was victimisation, although denying in each case that it was on racial grounds.  That seems to us to be a particular extra ground for having the clarifying effect of a clear questionnaire.

40.	It is also fair to take the point, as Mr Michell does, that if delay was to prove to be the only remaining factor that needed to be considered by the Chairman then he really should have said so on 27 March and should have indicated to Mrs Fearn and her advisers that something was expected by way of justification of the delay that had been already incurred.

41.	We could not begin to accept that all that the Chairman was doing on 27 March was to tantalise Mrs Fearn and her advisers into producing a statement even though it was recognised already to be out of time.  Therefore it seems to us it must have followed from the way that the Chairman framed things that he was regarding time down to 27 March as, in effect, water under the bridge and that only if it was going to be further delayed outside the 10 days that he indicated, was delay required to be explained.  But in fact that latter period of delay never was incurred and for those reasons we think there was an error of law, as we have mentioned, and we set aside the refusal of the Chairman to permit the questionnaire.

42.	In a world which afforded us more time it would have been sensible for us to remit to the Chairman all questions concerning the contents of the questionnaire but Miss D’Souza has accepted that a questionnaire is the most effective way of eliciting information at this stage of the matter.

43.	She has not drawn attention to any particularly offensive, oppressive, scandalous or other unreasonable matters that ought to be excised from the proposed questionnaire and so, rather than remitting to the Chairman for him to frame the form of the questionnaire or to comment on it, we think at this junction the better course is simply to set aside his refusal to grant leave for it and instead to grant leave for it, on the basis that it is now to be served with all reasonable speed.

44.	There are some other minor issues that could be tidied up; for example, it transpires that at the hearing which led to the order of 27 March, the claim for unfair dismissal was dismissed on withdrawal; it plainly was a non-starter.  Also the breach of contract claim as then framed was dismissed as well.  Mr Michell, I think, is willing to assist in avoiding a remission by procuring that his Clients write a solicitor’s letter clarifying that they accept that the unfair dismissal claim was indeed dismissed on withdrawal and that the original form of breach of contract claim was also dismissed.

45.	That, I think, fits the bill in the sense that there is nothing else that we need give directions on today but if there are directions which can usefully be made and which might facilitate the matter going ahead on 5 September as a full and effective hearing we will certainly be happy to consider them.