Appeal No. EAT/1203/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 October 2001

Before
HIS HONOUR JUDGE PETER CLARK
MRS R A VICKERS
MR G H WRIGHT MBE

GOLDMAN SACHS SERVICES LTD	APPELLANT

MS F M MONTALI	RESPONDENT

Transcript of Proceedings

JUDGMENT

INTERLOCUTORY HEARING

Revised

	APPEARANCES

For the Appellant	CHARLES CIUMEI
(Of Counsel)
Instructed by
Messrs Simmons & Simmons
Solicitors
City Point
One Ropemaker Street
London
EC2Y 9SS	

JUDGE PETER CLARK

1.	This interlocutory appeal raises a point of general importance regarding Employment Tribunal practice where one Tribunal revisits and varies or alters an interlocutory order or direction made by an earlier Tribunal.  We use the expression Tribunal to include a Chairman properly sitting alone.

Background
2.	The Applicant, Ms Montali, commenced her employment with the Respondent, Goldman Sachs Services Ltd, in February 1996.  That employment is continuing.

3.	In June 1998 she was diagnosed as having multiple sclerosis.  She was able to continue at work until 28 May 1999, when she went on extended sick leave.  She has not since been fit to return to work.

4.	On 1 December 2000 she presented an Originating Application to the London Central Employment Tribunal complaining of disability discrimination and victimisation.

5.	The claim was resisted and by their Notice of Appearance the Respondent raised the point that the majority of her complaints was statute-barred, that is, related to events occurring more than 3 months before 1 December 2000.  Disability Discrimination Act 1995 Schedule 3 paragraph 3.

6.	On 1 February the Respondent’s solicitors wrote to the Employment Tribunal asking that at a directions hearing fixed for 2 March 2001 the Employment Tribunal consider, as a preliminary issue, whether the Applicant’s complaints pre-dating 1 September 2000 were statute-barred.

7.	The Applicant’s solicitors opposed that course.  By letter dated 14 February they contended that if any part of her claim was statute-barred, which was denied, that issue ought to be determined at the full hearing of the complaint.

8.	In these circumstances it was directed that the question as to whether a preliminary issue hearing was appropriate would be considered at the directions hearing.

9.	On 2 March a directions hearing took place before a Chairman, Mr D H Roose, sitting alone.  Both parties attended by Counsel.  The Applicant maintained her position that a preliminary issue hearing was inappropriate; the Respondent argued that it was the proper course.  The Chairman accepted the Respondent’s submission and ordered that there be a Preliminary Hearing on 3 and 4 September 2001 to consider whether the complaint was time-barred.  That direction was contained at paragraph 2 of a directions letter dated 12 March 2001 and sent to both parties.  The Applicant did not appeal against that direction.

10.	Each side prepared for the hearing of the preliminary issue.  It was strongly contested.  On 3 September the parties attended, each represented by leading Counsel, to argue the preliminary issue ordered by Mr Roose.

11.	They came before a full Employment Tribunal chaired by Mr C A Carstairs.  Events then took an unexpected turn.  Of its own motion, the Employment Tribunal expressed the contrary view to that of Mr Roose.  Like the Applicant’s side it seemed to them that the question of limitation ought to be dealt with at the full hearing, directed by the Carstairs Employment Tribunal to take place over 15 days commencing on 29 April 2002.  Mr Hochhauser QC for the Respondent sought to persuade the Employment Tribunal that they should proceed to hear the preliminary issue, as directed by Mr Roose.  They declined to do so.  The Applicant’s side were content with this turn of events; it is what they had always wanted.  Thus the Employment Tribunal ordered that the preliminary issue as to limitation should be considered as part of the full hearing to commence on 29 April 2002.  They then gave further directions for steps to be taken prior to the full hearing.  The next direction after today is the agreement of a unified trial bundle on or before Friday 26 October.  The Employment Tribunal’s orders and reasons were promulgated on 19 September 2001. (the Carstairs orders).

12.	Dissatisfied with the Carstairs orders the Respondent below entered a notice of appeal on 5 October.  With that Notice was a covering letter from the Respondent’s solicitors which pointed out that certain directions, contained in the Carstairs orders, were outstanding.  The letter concludes:

“We seek your guidance as to how to obtain a stay of these outstanding directions.”

13.	Treating that letter as an application for a stay of the outstanding directions made by the Carstairs’ tribunal the Employment Appeal Tribunal responded by a letter dated 9 October stating that the Registrar had directed that initially the matter would be listed as an interlocutory application to stay the Tribunal’s proceedings pending the appeal from the order promulgated by Mr Carstairs’ Tribunal.  No date for the appeal had then been fixed but the stay application was arranged for today.

14.	On the same day, the 9 October, solicitors for the Applicant faxed the Employment Appeal Tribunal, indicating that leading Counsel, Mr Adrian Lynch QC, would be instructed to appear on the stay application.  At the same time they entered the Respondent’s answer, indicating an intention to resist the appeal.

15.	There the matter rested until, on 15 October, the Applicant’s solicitors faxed the Employment Appeal Tribunal, indicating that they would not be attending today’s hearing for the reasons set out in an enclosed letter from the Applicant herself to the Employment Appeal Tribunal.  In short, she had decided, for perfectly understandable economic reasons not to be represented either at the hearing of the stay application fixed for today or for the hearing of the appeal, yet to be fixed.

16.	It was in these circumstances that I pre-read the papers on 17 October.  It occurred to me that it was highly arguable that the Employment Appeal Tribunal had no power to order the stay of Employment Tribunal orders before determining the appeal; see particularly the provisions of s35(1) of the Employment Tribunals Act 1996.  It is certainly not my understanding of the Employment Appeal Tribunal practice to do so.  If so, and it is unnecessary in the event to decide that point in this appeal, the Appellants before us, Respondents below would have a wasted journey and the appeal would still remain outstanding.  I therefore directed that enquiries be made of the parties.  The Respondent was prepared to argue the full appeal this morning and Mr Cieumi appears on their behalf, having submitted a particularly helpful skeleton argument relating to the issues in the substantive appeal.  The Applicant maintains her position that is that she did not intend to appear at the full appeal hearing but at the same time maintaining her opposition to the appeal.  Accordingly we have treated the hearing today as an opposed full appeal hearing.

17.	It is now well-established that no distinction is to be drawn between appeals against interlocutory orders of Employment Tribunal’s and Employment Tribunal decisions, noting the difference between the two contained in the definition of a decision in regulation 2(2) of the Employment Tribunal (Constitution etc) Regulations 2001 (SI 2001/1171).  The suggestion in British Library v Palyza [1984] ICR 504 EAT (Nolan J presided) that the Employment Appeal Tribunal had a general power of review of interlocutory orders made below was not followed in the later Employment Appeal Tribunal case of Medallion Holidays Ltd v Birch [1985] ICR 578 (Waite J presiding).  The Birch approach is to be followed; see Ashmore v British Coal Corporation [1990] IRLR 283 (Court of Appeal). 

18	Thus, in order for this appeal to succeed it is necessary for the Respondent to demonstrate an error of law on the part of the Carstairs’ Tribunal.  In practice that means that the Employment Appeal Tribunal must consider the three questions posed by Wood J in Adams and Rayner v West Sussex County Council [1990] IRLR 215:

	(a)	was the order made within the powers given to the Employment Tribunal

(b)	was the discretion exercised by the Employment Tribunal within ‘guiding legal principles’

	(c)	can the exercise of discretion be attacked on ‘Wednesbury’ principles;

This last question echoes the approach of Arnold J in Bastick v Lane [1979] ICR 778, 782, approved by the Court of Appeal in Carter v Credit Change Ltd [1979] ICR 908, 918F, per Stephenson LJ.

19.	As to the question of the Employment Tribunal’s power to vary an earlier interlocutory order, Mr Cieumi accepts, we think correctly, that such power is granted, particularly by rule 4(1) of the 2001 Employment Tribunal Rules of Procedure (Schedule 1 to the Regulations), which provides:

“A Tribunal may at any time, on the application of a party or of its own motion, give such directions on any matter arising in connection with the proceedings as appear to the Tribunal to be appropriate.”

We repeat, the orders made both by Mr Roose and the Carstairs’ Employment Tribunal were interlocutory orders other than decisions within the meaning of regulation 2(2) of the Regulations.  There were therefore not susceptible to review under what is now rule 13 of the 2001 rules.  Peter Simper & Co Ltd v Cooke (No 1) [1984] ICR 5, 9E, per Browne-Wilkinson J.  However, an interlocutory order once made may be revisited by the Employment Tribunal – see for example Nikitas v Solihull Metropolitan Borough Council [1986] ICR 291, 295 D EAT (Waterhouse J presided).

20.	Thus, the real question in this appeal is whether the Carstairs’ Employment Tribunal exercised their discretion judicially and in accordance with guiding legal principles when they ordered that the preliminary issue identified by Mr Roose should form part of the full merits hearing and not be dealt with as a preliminary issue?

21.	As to that the proposition advanced by Mr Cieumi on behalf of the Respondent is that, in accordance with well-established rules of civil procedure, currently contained within the civil procedure rules, an interlocutory order once made should not be later varied or altered in the absence of an intervening change of circumstances.  Here there was no such change in circumstances.

22.	We turn first to the position under the ordinary civil rules.  For the historical principle that interlocutory orders made in the Civil Courts ought not to be altered without good cause on a later occasion Mr Cieumi relies on Channel Ltd v Woolworth & Co Ltd [1981] 1WLR 485; Pet Plan Ltd v Protect-A-Pet Ltd [1988] FSR 34.  We accept that proposition.

23.	Next, the CPR.  Take the position so far as multi-track cases in the County Court are concerned.  The practice direction supplemental to Part 29 of the rules deals with variations to directions given at paragraph 6.  The regime provides that if a party is dissatisfied with a direction given at a hearing at which he was present he should appeal the original direction unless:

“6.4	Where there has been a change in the circumstances since the order was made the Court may set aside or vary a direction it has given.  It may do so on application or on its own initiative.”

24.	That principle has been underscored recently by the Court of Appeal in Jameson v Lovis [2001] EWCA CIV 1264.  At paragraph 22 of the report Laws LJ stated:

“There are, as was submitted in the respondent’s skeleton, clear and detailed procedures for bringing appeals against interlocutory orders.  These are not mere technicalities.  They exist to achieve finality and certainty within the processes of civil litigation.  If they are ignored by litigants who prefer to air their procedural points all over again at a later case management conference and that kind of action was sanctioned by this court, the aims of the Civil Procedure Rules would be significantly undermined.  We would have uncertainty and repetition, not clarity and finality.  Of course if there were a true change of circumstances then in my judgment the flexibility which the CPR commend would plainly allow a change of view as to the procedural orders which should be made.”

25.	If that is the position under the CPR, is it any different for Employment Tribunals?  We think not.  First, because we find a resonance in the Employment Appeal Tribunal judgement delivered by Keene J, as he then was, in Morris v Betterware Ltd [2001] ICR 14, 22H, decided under the 1993 Rules in relation to successive pre hearing reviews.  Secondly, Regulation 10 of the Regulations introduces, for the first time, the overriding objective of the rules contained in Schedule 1.  It provides as follows:

“10   Overriding Objective

(1)	The overriding objective of the rules in Schedules 1 … is to enable Tribunals to deal with cases justly

(2)	Dealing with a case justly includes so far as practicable

	(a)	ensuring that the parties are on an equal footing

	(b)	saving expense

(c)	dealing with a case in ways which are proportionate to the complexity of the issues and 

	(d)	ensuring that it is dealt with expeditiously and fairly

(3)	A Tribunal will seek to give effect to the overriding objective when it

	(a)	exercises any power given to it by the rules in Schedule 1 … or 

	(b)	interprets any rule in Schedule 1 …

(4)	The party should assist the Tribunal to further the overriding the objective”

26.	That, it seems to us, is the clearest possible indication that when exercising any power under the rules, as here, the Employment Tribunal will follow the same principles as those spelt out in the CPR.  In particular, in the present case, it will not reverse any earlier interlocutory order, which has dictated the parties’ preparation of their cases, in the absence of a material change in circumstances.  In opposing this ground of appeal, which is clearly set out in the notice of appeal, the Applicant submits, in her letter dated 15 October 2001, as follows.  She accepts that she, together with her solicitors and Counsel, prepared for the hearing on 3 September as a preliminary hearing of the limitation issue.  She further accepts that the Carstairs’ order made on 3 September had not been sought by either party but was made at that Employment Tribunal’s own instigation.   Nor does she contend that there had been any material change in circumstances between Mr Roose’s direction for a preliminary hearing and the date of that hearing before the Carstairs’ Employment Tribunal.

27.	Instead she submits that the Carstairs’ order was right; it was sensible because that is what she had previously argued for.  It should not be disturbed on appeal.  We have not had the advantage of hearing oral submissions on behalf of the Applicant.  We make no complaint about that, nor do we take offence.  We quite understand the financial considerations which led to her decision not to take part in this hearing.  Nevertheless, we stress that in the absence of full argument we have reached our own independent view of the matter.

28.	Our conclusion is that the Carstairs’ Employment Tribunal fell into error in reversing the direction given by Mr Roose as to the holding of the preliminary hearing in the absence of any change of circumstances.  To abort that hearing was a wrong exercise of discretion and wrong in principle.  If the Applicant had been dissatisfied with Mr Roose’s direction, following a contest, she ought to have appealed it.  She did not.  Nor did she make complaint at the commencement of the hearing on 3 September.  It was, by common consent, the Employment Tribunal, perhaps more particularly the Chairman, who raised the question of limitation being dealt with at the full hearing; precisely the issue which Mr Roose had determined in favour of the Respondent and adverse to the Applicant’s contention.

29.	Whether or not a preliminary hearing was desirable in this case is not a matter for us in this appeal.  If litigants and more particularly the Employment Tribunal itself, revisit procedural points already decided in the absence of a change of circumstances there will be uncertainty and repetition rather than clarity and finality within the processes of the Tribunal litigation, to paraphrase Laws LJ in Jameson v Lovis. 

30.	It follows, in our judgment that this appeal must be allowed and the Carstairs’ orders set aside, save for the full hearing date fixed for the 15 day period commencing on 29 April 2002.  We say that because the Regional Chairman should now direct a fresh hearing date for the hearing of the preliminary issue originally ordered by Mr Roose before a Tribunal different from that which sat on 3 September 2001.  That will inevitably put back the time-table set for the substantive hearing by the Cairstairs’ Employment Tribunal.  It will be for the Employment Tribunal to reconsider that time-table.  If the hearing date of 29 April can be retained, all well and good.  Otherwise a new date will have to be set.  The full hearing will also take place before a fresh Employment Tribunal.