THE INDUSTRIAL TRIBUNALS

CASE REFS:	304/16
1219/16

CLAIMANT:			Donna Nesbitt

RESPONDENT:		The Pallet Centre Limited

DECISION ON A PRE-HEARING REVIEW
The tribunal is not satisfied that the respondent has failed to comply with the Unless Order dated 1 December 2016 in any material respect and the respondent’s response is not therefore struck out.

The revised timetable is set out at paragraphs 38-45.

Constitution of Tribunal:
President (sitting alone):	 Ms E McBride, CBE

Appearances:
The claimant represented herself.
The respondent was represented by Mr Maclean of Peninsula Business Services Ltd.

REASONS

The Issue

1.	The issue to be determined at this Pre-Hearing Review was whether the respondent had failed to comply with the Unless Order dated 1 December 2016 in any material respect.

2.	The claimant presented a claim to the Industrial Tribunal on 12 January 2016 in which she made complaints in respect of equal pay, sex discrimination including victimisation and harassment and non-payment of bonus.

3.	The respondent presented a response on 12 February 2016 resisting the claimant’s complaints.

4.	A Case Management Discussion took place on 12 April 2016 to identify the issues to be determined by the tribunal, to make appropriate Case Management orders and list the case for hearing.  At the outset of the hearing the claimant indicated that she intended to present a further claim of unfair constructive dismissal.  In light of that I made a number of orders to ensure the progress of the complaints that had already been received but directed that the case would not be fully case managed to  hearing until the claimant’s further claim and the respondent’s response thereto had been received.  In the meantime I made a number of orders including the order that the respondent respond to the claimant’s notice which had been sent to the respondent on 22 January 2016 and to provide the claimant with all relevant discovery by 3 May 2016.

5.	On 25 April 2016 the claimant presented her further claim which contained a complaint of unfair constructive dismissal.

6.	On 1 June 2016 the respondent presented a response resisting the claimant’s further claim.

7.	On 18 May 2016 a further Case Management Discussion took place to consider the adequacy of the respondent’s response to the claimant’s request for Additional Information and Discovery dated 26 January 2016 in relation to her equal pay claim.  I was satisfied that the respondent had not provided an adequate response to some of the requests and the time-limit for compliance was extended to 1 June 2016.  I directed that a further Case Management Discussion would take place in relation to both of the claimant’s claims on 29 July 2016.

8.	The Case Management Discussion on 29 July 2016 was conducted by the Vice-President who directed that a Stage 1 Equal Value hearing in relation to the claimant’s equal pay claim should take place on 30 August 2016 with the full hearing from 5-9 December 2016.

9.	At the Stage 1 Equal Value hearing on 30 August 2016 the respondent indicated that it was raising a Genuine Material Factor Defence and submitted that in those circumstances it was premature to have an Equal Value Stage 1 hearing.  The tribunal was satisfied that the Genuine Material Factor Defence should be determined first and that it should be dealt with as part of the substantive sex discrimination hearing which had been listed from 5-9 December 2016.

10.	The claimant stated that she had not received all the information requested by her pursuant to the order made by me at a Case Management Discussion on 18 May 2016 and the tribunal gave directions in relation to a number of matters.  In particular the tribunal directed the respondent to set out particulars of the Genuine Material Factor Defence raised in relation to each of the named comparators.  The tribunal recorded that Mr Dolan who was representing the respondent confirmed that the Genuine Material Factor Defence as set out in the response form related to four points made by the respondent namely that the disparity in pay between the claimant and her comparators was explained by the comparators’ seniority, their line management responsibilities, the “hands-on work” they performed and their responsibility for others’ work.  The tribunal also directed that the respondent set out in writing the particulars of how the respondent says the disparity in pay was explained by those factors and that they are untainted by sex discrimination, in relation to each of the comparators.

11.	A further Case Management Discussion took place on 17 October 2016 to consider the claimant’s contention that the respondent had failed to comply with the directions given by Employment Judge Murray at the hearing on 30 August 2016. 

12.	Having considered the representations of the claimant and Mr Famutimi I was not satisfied that Employment Judge Murray’s directions had been fully complied with but in light of the illness of the respondent’s original representative and the wording of some of the requests, I did not consider it appropriate, at that stage to proceed to strike out the respondent’s response.  Instead I made a number of further orders to be complied with by the respondent by 31 October 2016.

13.	A further Case Management Discussion took place on 29 November 2016 to consider the claimant’s application to strike out the respondent’s response and to debar the respondent from taking part in the proceedings on the ground that the respondent had failed to comply with the orders that were made by me at the Case Management Discussion on 17 October 2016.  Having considered the representations of the claimant and Mr Maclean I was satisfied that while the respondent had responded to some of the orders that had been made by me at the Case Management Discussion on 17 October 2016, I was not satisfied that:

	(i)	the job titles of the claimant, A Jascericina and J Brown were specified in the hierarchical structure of the company documents; and

	(ii)	the respondent had set out particulars of the Genuine Material Factor Defence raised in relation to each of the named comparators in respect of the claimant’s equal pay claim.

14.	Mr Maclean was unable to put forward any explanation for those breaches and he accepted that without compliance the claimant could not receive a fair hearing of her equal pay claim.  In those circumstances I was satisfied that an Unless Order should be issued to the respondent putting it on notice that unless:

	(i)	the respondent provided the claimant with a hierarchical organisational structure of the company which included the job titles of the claimant, A Jascericina and J Brown; and 

	(ii)	set out particulars of the Genuine Material Factor Defence raised in relation to each of the named comparators, ie, that the respondent was required to set out in writing the particulars of how they say the disparity in pay was explained by the comparators’ seniority, the line management responsibilities, the “hands-on work” performed by them and the responsibility for others’ work;

		by 13 December 2016 their response to the claimant’s equal pay claim would be struck out and they would be debarred from defending that claim without any further notice, consideration or hearing.

15.	By correspondence dated and received on 15 December 2016 the claimant contended that the respondent had not complied with the Unless Order.  

16.	On that same date the respondent contended that it had complied with the Unless Order.

17.	This Pre-Hearing Review was therefore arranged for and took place on 13 January 2017 to consider whether the respondent had failed to comply with the Unless Order dated 1 December 2016 in any material respect.

18.	Both parties were provided with a copy of my decision in the Conway case which set out the relevant legal principles in relation to Unless Orders at paragraphs 29- 34.  I was satisfied that where, as in this case, an Unless Order in traditional form was made, the sanction embodied in it “takes effect without the need for any further order if the party to whom it is addressed fails to comply with it in any material respect ...”  (Marcan Shipping v Kefalas and Candida Corporation [2007] 1WLR1864 at paragraph 34).

19.	I was satisfied that it follows from the use of the phrase “in any material respect” that compliance with the Unless Order need not to be “precise and exact” (Johnson v Oldham Metropolitan Borough Council UKEAT/0095/13/JOJ at paragraph 7).  What is material in a case where particulars have been ordered is that the particulars provided “enable the other party to know the case it has to meet or, it may be, enable the Employment Tribunal to understand what is being asserted” (Johnson at paragraph 7).

20.	As set out above the Unless Order required the respondent to:
	(i)	provide the claimant with a hierarchical organisational structure of the company which includes the job titles of the claimant, A Jascericina and 
J Brown; and
	(ii)	set out particulars of the Genuine Material Factors raised in relation to each of the named comparators, i.e. that the respondent must set out in writing the particulars of how they say the disparity in pay is explained by the comparators’ seniority, line management responsibilities, “hands-on work” they perform and their responsibility for others’ work;
		by 13 December 2016.
21.	In relation to the first paragraph I was satisfied that although the respondent did not provide the claimant with a new company structure chart with the job titles of the claimant, A Jascericina and J Brown inserted on it, they did comply materially with the Unless Order by setting out in writing the respective job titles.
22.	In relation to the second paragraph I was satisfied that the particulars provided by the respondent were confusing because of the way they were set out.  However once Mr Maclean clarified which of the duties the respondent was contending amounted to the Genuine Material Factors relied upon, I was satisfied that the Unless Order had been materially complied with.  In those circumstances I was satisfied that the respondent’s response to the claimant’s equal pay claim should not be struck out.
23.	For the avoidance of doubt Mr Maclean confirmed on behalf of the respondent, in open tribunal, the particulars of the Genuine Material Factor Defences relied upon by the respondent, as follows.
Seniority
24.	In relation to comparator 1, the respondent contends that he held a position of seniority, which attracted more pay that the claimant, because he was required to attend management and production meetings on a regular basis which the claimant was not required to.
25.	In relation to comparators 2, 3 and 4, the respondent contends that they held positions of seniority because they were required to have regular knowledge of relevant health and safety protocols and were required to implement those protocols to ensure the smooth running of the organisation whereas the claimant was not so required.
Line management responsibilities
26.	In relation to comparator 1 the respondent contends that he was directly responsible for 12 employees whose names have already been provided to the claimant.
27.	In relation to comparator 2 the respondent contends that he was responsible for training one employee whose name has already been provided to the claimant.
28.	In relation to comparators 3 and 4, the respondent contends that they had joint responsibility for supervising 32 employees whose names have already been provided to the claimant.
“Hands-on work”
29.	In relation to comparator 1, the respondent contends that in addition to his other duties he maintains plant and machinery, controls stock, supervises overall production, carries out risk assessments and negotiates with contractors/suppliers.
30.	In relation to comparator 2, the respondent contends that in addition to his other duties, he services, repairs and maintains plant and machinery and controls daily flow and stock level of waste timber chippings.
31.	In relation to comparators 3 and 4, the respondent contends that in addition to their other duties, they ensure production targets are met and, if not, they liaise with management to minimise disruption.
Responsibility
32.	In relation to comparators 1 and 2, the respondent contends that they are responsible for ensuring the regular servicing, repairs and maintenance of plant and equipment and of ensuring compliance with health and safety requirements and regulations.
33.	In relation to comparator 3, the respondent contends that he is responsible for ensuring ongoing retraining of staff on a bi-annual basis and for ensuring that all operatives have the appropriate equipment to perform their duties safely.
34.	In relation to comparator 4, the respondent contends that he is responsible for the training and development of new employees on the production floor.
The claimant’s application for further Discovery and Additional Information
35.	By correspondence dated 28 December 2016 the claimant sought discovery of all documents which prove that Ms J Graham had reimbursed the respondent to the sum of £2,300.00 in respect of the sick monies paid to her.
36.	The respondent contended that the repayment was lodged in their bank account by way of a cash lodgement and that the bank statement would show this.  However as it was clear that the bank statement would only show that a cash lodgement had been made and not that cash had been provided by Ms J Graham, no order for discovery was made.
37.	The claimant sought details of every period of sick absence taken by her and confirmation as to whether she was paid in full during those periods.  In addition she sought discovery of any memo, email or letter that refers to sick pay.  Mr Maclean confirmed, on behalf of the respondent, in open tribunal, that until 14 March 2016, the claimant was always paid her full pay while on sick leave.  The claimant accepted that she had received a letter from the respondent prior to 14 March 2016 informing her why her sick pay was being stopped from 14 March 2016.  It was clarified that the issue between the parties is why the claimant’s sick pay was stopped and that is in dispute between the parties.  The claimant accepted that in light of the above circumstances discovery was not required and no order was made.
Revised Timetable
The claimant’s equal pay complaint
38.	Mr Maclean indicated that the respondent and any witness it wishes to call could still provide a signed and dated witness statement in relation to the Genuine Material Factor Defence to the claimant by 5.00 pm on 27 January 2017 and that time-limit was therefore not extended.
39.	As the claimant’s insurance company will be considering the above replies before deciding whether or not to provide the claimant with representation, I was satisfied that the claimant and any witnesses she wishes to call will require more time to provide signed and dated witness statements to the respondent’s representative in relation to the respondent’s Genuine Material Factor Defence.  I therefore extended the time-limit from 17 February 2017 to 3 March 2017.

The claimant’s complaints of sex discrimination including victimisation and
harassment and constructive dismissal
40.	For the same reason, as set out above, I was satisfied that the claimant and any witness she wishes to call in relation to her complaints of sex discrimination including victimisation and harassment and constructive dismissal which are due to be heard with the respondent’s Genuine Material Factor Defence in the claimant’s equal pay complaint will require more time to provide signed and dated witness statements to the respondent’s representative.  I therefore extended the time-limit for them to do so from 27 January 2017 to 3 March 2017.
41.	I also extended the time-limit for the respondent and any witness it wishes to call in relation to the claimant’s complaints of sex discrimination, including victimisation and harassment and unfair constructive dismissal to provide a signed and dated witness statement to the claimant from 17 February 2017 to 24 March 2017.
Schedule of Loss
42.	I extended the time-limit for the claimant to provide to the respondent’s representative a schedule of all financial loss claimed by her, setting out in particular the nature and amount of any such loss claimed and how that sum is made up from 27 January 2017 to 3 March 2017.
Bundles
43.	The time-limit for the bundles to be lodged in the tribunal office is extended from 2 March 2017 to 3 May 2017.
Date of hearing
44.	The hearing listed from 6-10 March 2017 will be re-arranged and will now proceed from 8-12 May 2017.  The hearing will commence at 2.00 pm on 8 May 2017 to enable the tribunal to read the witness statements.  Parties and witnesses must be in attendance at that point.  The hearing will commence at 10.00 am on all other dates.
Progress Review Case Management Discussion
45.	The Progress Review Case Management Discussion will now take place on Monday 24 April 2017 at 9.30 am by telephone conference to ensure that the reading time and hearing time allotted to the case is still appropriate.

President:		______________
E McBride, CBE

Date and place of hearing:   13 January 2017, Belfast.

Date decision recorded in register and issued to parties: