Appeal No. UKEAT/0350/08/CEA
UKEAT/0351/08/CEA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 1 December 2008
Judgment handed down on 22 April 2009

Before
HIS HONOUR JUDGE BIRTLES
(SITTING ALONE)

MR R KHAN	APPELLANT

VIGNETTE EUROPE LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR DAVID PIEVSKY 
(of Counsel)
instructed by the Free Representation Unit
	
For the Respondent	MR MOHINDERPAL SETHI
(of Counsel)
Instructed by:
Messrs Field Fisher Waterhouse LLP Solicitors
35 Vine Street
London EC23N 2AA	

SUMMARY
PRACTICE AND PROCEDURE:  Costs
Decision by an Employment Judge to award the costs thrown away by an adjournment held to be unreasonable for various reasons.  Observations on the Rule 3 procedure made as Respondent unsuccessfully challenged the jurisdiction of the EAT to hear the appeal.

HIS HONOUR JUDGE BIRTLES

Introduction
1.	This is an appeal from the Order of Employment Judge Griffiths sitting at Reading Employment Tribunal on 8 February 2008.  The Order followed a Pre-Hearing Review held on that date.  The written Order was sent to the parties on 20 February 2008.

2.	The Employment Judge adjourned the case for consideration of the particular matter before him, i.e. the equal pay issue, until 3 April 2008.  He also ordered the Appellant to pay the costs of the hearing assessed at £1,500 together with VAT.  Against that Order the Appellant appeals to the Employment Appeal Tribunal.  

3.	The Notice of Appeal is dated 5 March 2008 and challenges various matters dealt with at the Pre-Hearing Review on 6 December 2007 (Employment Judge Hill) and the Pre-Hearing Review held on 8 February 2008 (Employment Judge Griffiths).

4.	On 13 August 2008 there was a Rule 3(10) hearing before HHJ Pugsley who gave permission to the Appellant to proceed to a full hearing on one point alone, namely whether Employment Judge Griffiths was in error in law in making an Order for costs against the Appellant on 8 February 2008.  All other grounds of appeal were dismissed at that stage.

5.	At the hearing of the appeal today Mr David Pievsky (of Counsel) appeared on behalf of the Appellant instructed by the Free Representation Unit.  Mr Mohinderpal Sethi (of Counsel) appeared for the Respondent.  As always the Employment Appeal Tribunal is grateful for the assistance it gets from representatives of the Free Representation Unit.

History
6.	The Appellant was employed by the Respondent as a Telemarketer from 21 March 2005 until 8 June 2007 when he was dismissed.  He presented various claims to the Employment Tribunal on 4 July 2007 namely: (i) unfair dismissal; (ii) equal pay; (iii) age discrimination and (iv) discrimination on the grounds of religion or belief.

Preliminary Hearing Review on 6 December 2007 before Employment Judge Hill
7.	At a PHR on 6 December 2007 in relation to the equal pay claim, the Employment Tribunal clarified (at para 2.1 p31) that:
“The factual basis for the claims is that the claimant considered that he was  paid less than 2 female comparators who he said did like work to him.  He raised a grievance on this matter on 20 March 2006.”

This was a reference to the Claimant’s statement of case on equal pay (at Claim Form section 6.2 p15) where he specifically identified his step 1 equal pay grievance by asserting:  “I raised this as a grievance on 20th March 2006’”.

8.	In relation to his age and religion or belief discrimination claims, this was clarified (at para 2.2 p32) as follows: 
“He further claimed that a man was latter appointed to a role similar to his but this person was paid more than him.  As this man was older than the claimant and practised his religion differently from the claimant, he argued that the difference in pay related to discrimination both on the grounds of his age and his religion.”

In his Claim Form (at section 6.2 p15) the Claimant relied on a different grievance as constituting his step 1 grievance for the purposes of his age and religion discrimination claims but (unlike his alleged equal pay grievance) did not identify the document by date.  Rather, he simply stated (see p15): “I complained about this and my complaint was a still a live issue when I was dismissed.”

9.	The Respondent did not admit that the Claimant had complied with step 1 of the statutory minimum grievance procedure, and in particular that any step 1 equal pay grievance had been sent to it on 20 March 2006 as alleged.  Accordingly, the Employment Tribunal (at para 4.1 p32) noted: 
“In relation to the claims of equal pay and the discrimination claims, a step 1 grievance in writing must have been commenced by the claimant prior to his presenting his claim to the Tribunal.  The respondent disputes that the claimant has done this.  As the letters relied on by the claimant are different in respect of the discrimination claims as opposed to the equal pay claim, the issue is approached in 2 different ways.”

10.	Since the age and religion discrimination grievance was unspecified in the Claim Form and the Claimant was unable to identify it even by date without access to his work laptop, the Employment Tribunal made the following Order:

“(1)	4.2.1	The claimant is ordered to advise the respondent by 4 pm on 12 December 2007 the areas of the computer he requires to search to gain access to his correspondence/emails.
(2)	4.2.2	The respondent is ordered to provide access to the claimant to his computer for the relevant search by 14 December 2007.  The access is to be in the presence of a representative of the respondent.
(3)	4.2.3	By 7 January 2008 the Claimant must provide to the Respondent and the Tribunal copies of any documents on which he relies to show he had provided a written grievance regarding his claims of discrimination on the grounds of age, religion and belief.  Unless he does so, the claims will be struck out as having no reasonable prospect of success.”

11.	As to the specified alleged equal pay grievance, the Employment Tribunal ordered (at para 4.3 p33):
“The issue of whether the claimant has served on the respondent a grievance in writing prior to presenting the claim to the Tribunal will be addressed at a PHR on Friday 8 February 2008 …”

12.	As to general disclosure, the Employment Tribunal ordered (at para 5 p33) the parties:
“… to provide to each other a list of all documents they hold relevant to the issues due ultimately to be considered by the Tribunal by 4pm on 21 January 2008.  Inspection of any documents on request to [be] made by 28 January 2008.”

13.	On 6 January 2008 the Claimant’s representative (who has since ceased acting for him) sent an email to the Tribunal (at p46) requesting an extension of time in which to submit copies of his age and religion discrimination grievances.

14.	On 8 January 2008 the Respondent’s solicitors wrote to the Tribunal (at pp 47-48) objecting to the Claimant’s request for an extension of time on the ground that the Respondent had provided access to the Claimant’s work laptop and allowed for adequate time for him to identify which documents he considered to be his grievances.

15.	On 9 January 2008 the Claimant’s representative submitted copies of several emails which were alleged to constitute step 1 grievances, despite the fact that the email correspondence did not refer to discrimination on the grounds of age, nor religion or belief (at p49).

16.	In response, the Respondent’s solicitors wrote to the Tribunal on 11 January 1998 (at pp 50‑51) submitting that the Claimant had failed to comply with the Tribunal’s Order and had (in any event) produced documents which could not be considered to constitute valid grievances.

17.	Meanwhile, general disclosure by list was due to take place by 21 January 2008.  However, given the Claimant’s non-compliance with the unless Order to serve his age and religion discrimination grievances, and the uncertainty this created as to whether these claims would proceed at all to a full hearing, the Respondent also requested in its letter to the Tribunal dated 11 January 2008 that general disclosure be postponed (pp50-51).  In accordance with Rule 11(4) of the Employment Tribunal Rules, a copy of this application letter was sent to the Claimant’s solicitors at that time, SGS Solicitors (see p51 A-C).  The Claimant maintains that his solicitors did not receive this letter.

18.	On 22 January 2008 Employment Judge Hill wrote to the Claimant (p35) refusing his request for an extension of time to comply with the unless Order of 6 December 2007 by reason: 
“that the claimant had a strict timetable to comply with and has failed to do so.  No reasonable explanation has been given for this and why the extension is needed.”

19.	By an Order sent to parties on 23 January 2008 Employment Judge Hill ordered:  
“the claims of age discrimination and discrimination on the grounds of religion and belief to be struck out on the ground that the claimant has not complied with a requirement imposed under rule 10 by the Order dated 6 December 2007.”

20.	On 6 February 2008 the Respondent’s solicitors received a fax from Reading Employment Tribunal confirming that Judge Hill had agreed to its request to postpone general disclosure (p1).  A copy of this letter was also sent to the Claimant’s solicitors at the time, SGS Solicitors.

Preliminary Hearing Review on 8 February 2008 before Employment Judge Griffiths
21.	The single issue PHR on whether the Claimant had presented an equal pay grievance took place on 8 February 2008.

22.	No correspondence was received from the Claimant or his solicitors regarding this issue prior to the PHR.  For the first time at the PHR, the Claimant’s representative indicated that the Claimant did not have a copy of his equal pay grievance on which he intended to rely as this was on the Claimant’s laptop.  He alleged that the Claimant was relying on general disclosure to reveal the grievance document before this PHR.

23.	Mr Stephen Ball of the Respondent had attended the hearing with a copy of the Claimant’s laptop and the Claimant was able to look through the laptop for his equal pay grievance during an adjournment at the hearing.  As the Claimant had to attend prayers at midday, there was not enough time to go through the documents which he had selected from the laptop in order to resolve whether he had raised a valid equal pay grievance.  These documents were served on the Respondent by the Claimant at a later date.

24.	The Claimant’s representative had not objected to the Respondent’s application to delay disclosure.  He had also not contacted the Respondent’s solicitors at any point on or around 21 January 2008 in order to arrange disclosure of documents generally or specifically.  He had not chased the Respondent’s solicitors for the disclosure of any documents.  He had also not contacted the Respondent’s solicitor or the Tribunal in advance of the PHR to explain that the single issue to be resolved at the hearing could not be resolved as certain disclosure had not taken place.  On this basis, the Respondent’s representative applied for the costs caused by the inevitable adjournment of the PHR and necessitated by the Claimant’s lack of preparedness.

25.	The Claimant was ordered to pay the Respondent’s costs thrown away by the wasted hearing on 8 February 2008, which costs were summarily assessed at £1,500 plus VAT.

The law on costs
26.	The relevant parts of Rule 40 of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (SI 2004/1861) provide as follows:
“40	When a costs or expenses order may be made.
(i)	A tribunal or chairman may make a costs order when on the application of a party it has postponed the day or time fixed for or adjourned a Hearing or Pre-Hearing Review.  The costs order may be against or, as the case may require, in favour of that party as respects any costs incurred or any allowances paid as a result of postponement or adjournment.
(ii)	A tribunal or chairman may consider making a costs order against a paying party where, in the opinion of the tribunal or chairman (as the case may be), any of the circumstances in paragraph (3) applies.  Having so considered, the tribunal or chairman may make a costs order against the paying party if it or he considers it appropriate to do so.
(iii)	The circumstances referred to in paragraph (ii) are where the paying party has in bringing the proceedings, or he or his representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or unreasonably, or the bringing or conducting of the proceedings by the paying party has been misconceived.
(iv)	A tribunal or chairman may make a costs order against a party who has not complied with an order or practice direction.”

27.	Rule 40(1) which covers the case of a postponement or an adjournment operates independently of the principal costs rule in Rule 40(3).  It is not tied to the type of conduct described in Rule 40(3): see Ladbroke Racing Limited v Hickey [1979] ICR 525 and Rajguru v Top Order Limited [1978] ICR 565.

The Notice of Appeal
28.	The Notice of Appeal is at EAT bundle pages 7-8.  It says this:
“6.	The grounds upon which this appeal is brought are that the tribunal erred in law in that:
(The Tribunal showed bias at the hearing on 6th December 2007, see attached affidavit for full details.  As a result a number of orders were made restricting my access to documents to pursue my claim.
The Tribunal showed further bias when striking-out my claim for age, race and religious discrimination, see attached affidavit.
By refusing my access to documents to prepare and pursue my case the Tribunal have denied my right to a fair trial which is contrary to the Human Rights Act, see attached affidavit.
Both decisions and orders were perverse and no reasonable Tribunal would have made such decisions, see attached affidavit.”

29.	The affidavit of the Appellant is dated 5 March 2008 and is not part of the paginated EAT bundle but is separate to it.  

The Order of HHJ Pugsley 13 August 2008
30.	As I have early indicated in my judgment the matter eventually came before HHJ Pugsley under Rule 3(10) of the Employment Appeal Tribunal (Amendment) Rules 2001 and 2004.  Paragraph 1 of that Order says this:
“1	The Appellant’s application pursuant to Rule 3(10) is allowed in respect of paragraph 6 sub section (d) of the Notice of Appeal dated 5th day of March 2008 only which relates to the Employment Tribunal decision of the 8th day of February 2008 and sent to the parties on the 20th day of February 2008.  All other grounds of the Notice of Appeal are dismissed.”

31.	I pause there to note that as I have recorded paragraph 6 of the Notice of Appeal did not in fact have any letters against the sub-paragraphs but quite clearly Judge Pugsley’s reference to paragraph 6 sub section (d) of the Notice of Appeal is a reference to the fourth paragraph of paragraph 6 of the Notice of Appeal which states:
“Both decisions and orders were perverse and no reasonable Tribunal would have made such decisions, see attached affidavit.”

32.	What is also clear from the Order of 13 August 2008 is that Judge Pugsley gave permission to appeal only in respect of the Employment Tribunal decision of 8 February 2008 sent to the parties on 20 February 2008: EAT bundle page 43.

33.	A copy of the judgment of Judge Pugsley appears in the EAT bundle at pages 44A-44H.  Having summarised the facts at paragraphs 5-12 of his judgment Judge Pugsley said this:

“13.	An issue here is whether that was a perverse view in view of the fact that the letter about disclosure (at page 30 of the bundle), which I have already referred to, was only dated 6 February and the hearing was 8th.  But a more important aspect is this: the Tribunal then went on to state at paragraph 5:
“The Tribunal notes however by paragraph 4.2 of the Order the claimant was given access to his computer for the reasons set out.  When asked why that access could not have revealed the documents upon which the claimant wished to rely in connection with paragraph 4.3 it was said on the claimant’s behalf that the access ordered under paragraph 4.2 related to the claims for discrimination on the grounds of age and religion only.  It appears to the Tribunal that that is an over‑restrictive construction of the words of paragraph 4.2.1 as they refer to a search to gain access to the claimant’s correspondence/emails.  Be that as it may the respondents indicated that no further request had been made to them for disclosure of documents which did not relate to just discrimination on the grounds of age or religion.  They indicated that access would have been granted.  The laptop was available at the Hearing today for the claimant to make a further search should he wish to do so.  The Tribunal granted a short adjournment for this to be done.”
 14.	The above quotation is repeated word for word although the meaning of one sentence is not clear.  With the greatest of respect to the Tribunal it is I think at least arguable that the Tribunal was reaching a perverse decision in criticising what it said was the over‑restrictive view of the Claimant’s interpretation of the order of 6 December.
 15.	I do not wish to investigate because the Respondents are here but not taking part whether the letter at page 100 was before the Tribunal.  That is a matter about which I think investigation ought to be made for the hearing.  To penalise the Claimant for costs on the basis that the Tribunal set out is at least arguably a perverse decision.  I say no more than that.
 16.	It raises an issue to be determined by a full hearing, because if one looks at the actual form of the hearing of 6 December then it could be said that on its proper construction the Claimant had no right to go beyond the form of that order, especially in view of the letter of 13 December from the Respondent’s solicitor.”

Jurisdiction
34.	During the course of the hearing Mr Sethi raised the issue of whether I had jurisdiction.  Because the issue was raised during the course of the hearing I gave permission to both parties to file written submissions on the issue as identified by Mr Sethi.  Both Counsel have done so and I am grateful to them.  Before proceeding to deal with the substantive merits of the appeal it is necessary for me to make a decision on jurisdiction.  In order to do that I need to go somewhat further back in the history of the institution of this appeal.  

35.	In this case, the Appellant (who at the material time was unrepresented) had instituted the appeal by serving a Notice of Appeal upon the EAT.  It was dated 5 March 2008 and received by the EAT on 7 March 2008 (pp 7—8).

36.	On 14 March 2008 the EAT gave the Appellant notice that it appeared to HHJ McMullen QC that the Notice of Appeal had no reasonable prospect of success. (pp. 39-40).

37.	On 27 April 2008 the Appellant sent a further document to the EAT (pp. 94-96) which contended that the costs order imposed against him on 8 February 2008 by the Employment Tribunal was perverse, and gave particulars of that contention, trying to explain why it was a reasonable one.

38.	On 25 April 2008 the EAT gave the Appellant notice that the appeal had been referred to HHJ Peter Clark, that he had considered that the appeal remained unarguable and that no further action would be taken.

39.	On 13 August 2008 HHJ Pugsley heard the Appellant’s application under Rule 3(10) and considered that the appeal should be set down for a full hearing but only in respect of the ground set out at para 6(d) of the original Notice of Appeal dated 5 March 2008 i.e. the contention that the costs decision of the Tribunal dated 8 March 2008 (sent to the parties on 20 February 2008 ) was perverse (p. 43).

40.	There is no doubt that both parties fully understood the intention behind HHJ Pugsley’s Order, i.e. that the appeal should proceed, but only on the ground that the costs order imposed against the Appellant was perverse.  See the respective skeleton arguments for the 1 December 2008 hearing.  HHJ Pugsley thought that this contention was arguably correct.  He specifically stated that the appeal’s arguability was important, and had only emerged through the mechanism of an oral hearing.

41.	Rule 3(8) gives an appellant to whom notification has been given under Rule 3(7) the option of serving a fresh Notice of Appeal.  If he does so, it stands as though it was the original Notice of Appeal and will be considered on paper: Rule 3(8) and (9).  Rule 3(10) allows the appellant, in any event, to express his dissatisfaction and ask for an oral hearing.  He can do that even if he has not put in a fresh Notice of Appeal.  Thus the Appellant had a choice after 14 March 2008 to (a) submit a fresh Notice of Appeal, and then express dissatisfaction with the decision (if adverse) on that Notice of Appeal, or (b) express dissatisfaction and ask for an oral hearing.  See e.g. Lewis v Tesco Stores (UKEATPA/0277/03, 11.6.03), per Burton J at para 3.

42.	The technical defect relied upon by the Respondent is that in the Order allowing the Rule 3(10) application, HHJ Pugsley referred back to a paragraph in the original Notice of Appeal dated 5 March 2008 rather than to the fresh document.

43.	Does that mean that there is here no jurisdiction?  It does not.  First, it wrongly assumes that the Appellant could not have a 3(10) hearing on the original Notice of Appeal.  He could.  Secondly and in any event, by using the words “in respect of”, Judge Pugsley was simply intending to summarise the ground upon which leave to proceed had been granted.  That ground of appeal, and the ground particularized in the later document were legally identical, viz. that the Employment Tribunal had acted perversely in ordering the Appellant to pay costs.

44.	There are further arguments against the Respondent’s submissions:  First, there is here no defect depriving (or potentially depriving) the EAT of jurisdiction.  One argument is that the document at p. 94ff should be seen as a fresh notice of appeal and that appears to be how it was regarded at the time.  In this case, HHJ Pugsley’s Order should be interpreted as permissibly doing two things: (a) allowing the fresh Notice of Appeal to go to a full hearing under Rule 3(10), and (b) limiting the ground of appeal in respect of which permission has been granted (i.e. perversity).  Alternatively the document at p. 94ff was not a fresh Notice of Appeal at all.  In which case the problem evaporates entirely, because the Appellant was entitled to have the matter heard before a Judge in any event and have the appeal determined at a full hearing if arguable.

45.	Secondly, if that is wrong, the EAT can and should review the aspect of HHJ Pugsley’s Order which creates the problem, and vary it, because it was made as a result of an “error” (cf. Rule 33(1)(a)).  HHJ Pugsley clearly intended the appeal to go forward to a full hearing.  If there is a defect on the face of the Order, that is because of an error made by the EAT in respect of the means by which that intention was to be achieved.  If the first point is wrong (above), then the Order should presumably, on this analysis, have made it clearer that a fresh Notice of Appeal had been submitted in accordance with Rule 3(8), and that only the aspect of that Appeal which related to a contention of perversity should be considered at a full hearing.  The EAT may thus vary Judge Pugsley’s Order under Rule 33(1)(c), since the “interests of justice” require the Order to be reviewed in order to preserve jurisdiction over this appeal, which was the EAT’s intention.

46.	Thirdly, any remaining procedural defect can nevertheless easily be cured.  If I were wrong in my analysis then I would order the Appellant to serve upon the EAT within 14 days of the date of this judgment a Notice of Appeal complying with any unresolved procedural requirements, together with an extension of time for so doing under Rule 37(1).  There is no reason in fairness why he should not be permitted to do so.  

The Perversity Appeal
47.	I turn to the substantive merits of the Appellant’s sole point of appeal which is perversity.  It is important to remind myself of what Mummery P. said in Stewart v Cleveland Guest 

(Engineering) Limited [1994] IRLR 440 at paragraph 32(2):

“(2) Whenever an appeal is based on the perversity ground, this Tribunal must be extremely cautious not to conclude that the decision of the Industrial Tribunal is flawed because the Appeal Tribunal would have reached a different conclusion on the evidence or thinks that any other Industrial Tribunal would have reached a different conclusion on the evidence.  An appeal should no be allowed on this ground simply because the Employment Appeal Tribunal disagrees with the Industrial Tribunal as to the justice of the result, the merits of the case or the interpretation of the facts.  This Tribunal should only interfere with the decision of the Industrial Tribunal where the conclusion of that Tribunal on the evidence before it is ‘irrational’ ‘offends reason’, ‘is certainly wrong’ or ‘is very clearly wrong’ or ‘must be wrong’ or ‘is plainly wrong’ or ‘is not a permissible option’ or ‘is fundamentally wrong’ or ‘is outrageous’ or ‘makes absolutely no sense’ or ‘flies in the face of properly informed logic’.  This variety of phraseology is taken from a number of well-known cases which describe the circumstances in which this Tribunal (and higher courts) have characterised perversity.  The result is that it is rare or exceptional for an appeal to succeed on the grounds of perversity.  The reason why it is a heavy burden to discharge is that it has been recognised by those with wide experience and practical wisdom that there are many factual situations arising in the field of industrial relations, including sex discrimination, in which different conclusions may be reached by different tribunals, all within the realm of reasonableness.  It is an area in which there may be no ‘right answer’.  The consequences of this approach, also approved in cases of high authority is that it is not appropriate or fruitful to subject the language of the decision of the industrial Tribunal to ‘meticulous criticism’ or ‘detailed analysis’ or to trawl through it with a ‘fine-tooth comb’.  What matters is the substance of the Tribunal’s decision, looked at ‘broadly and fairly’ to see if the reasons given for the decision are sufficiently expressed to inform the parties as to why they won or lost the case and to enable their advisers to identify an error of law that may have occurred in reaching the conclusion.  Viewed in that way, the decision of the Industrial Tribunal is not perverse.”

48.	I also remind myself of what Mummery LJ said in Yeboah v Crofton [2002] IRLR 634 at paragraphs 92-94:

“92
A ground of appeal based on perversity should always be fully particularised so that the Respondent can be fully prepared to meet it and in order to deter attempts to pursue hopeless and impermissible appeals on factual points.  Paragraph 2(5) of the Employment Appeal Tribunal Practice Direction – Procedure (29 March 1996) provides:

‘It is not acceptable for an Appellant to state as a ground of appeal simply that “the decision was contrary to the evidence” or that “there was no evidence to support the decision” or that “the decision was one that no reasonable tribunal could have reached and was perverse” or similar general grounds, unless the notice of appeal also sets out full and sufficient particulars of the matters relied on in support of those general grounds.’

93
Such an appeal ought only to succeed where an overwhelming case is made out that the employment tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached.  Even in cases where the Appeal Tribunal has ‘grave doubts’ about the decision of the Employment Tribunal, it must proceed with ‘great care’: British Telecommunications plc v Sheridan [1990] IRLR 27 at paragraph 34.

94
Over the years there have been frequent attempts, consistently resisted by the Employment Appeal Tribunal, to present appeals on fact as questions of law.  The technique sometimes employed is to trawl through the extended reasons of an employment tribunal, selecting adverse findings of fact on specific issues on which there was a conflict of oral evidence, and alleging, without adequate particulars, supporting material or even proper grounds, that these particular findings of fact are perverse and that therefore the overall decision is perverse.  An application is often made to obtain the notes of evidence made by the chairman in the hope of demonstrating that the notes are silent or incomplete on factual points, that the findings of fact were not therefore supported by the evidence and that a question of law accordingly arises for the determination of the Employment Appeal Tribunal.”

Employment Judge Griffiths’ Reasons 8 February 2008
49.	The Order and Reasons appear at EAT bundle pages 2-5.  The material part of the reasons are as follows:
“1	This matter came before the Tribunal for the consideration of the preliminary matter set out in paragraph 4.3 of the Order.
2.	At the outset of the case the claimant’s representative indicated that he was in difficulty in that he did not have the documents upon which he intended to rely.  He said that they resided upon the claimant’s laptop which had been removed from the claimant on the day of his dismissal.
3	Further inquiry revealed that the claimant was relying for today’s hearing upon the general order of disclosure contained in paragraph 5 of the Order to provide him with the necessary documents to deal with the preliminary matter.
4.	The Tribunal notes that by a request to the Tribunal dated the 11th January 2008 and copied to the claimant the respondents requested that that general order for disclosure contained in paragraph 5 of the Order be delayed until such time as it was clear precisely which claims were going to proceed.  That request was granted.  The claimant’s inability to proceed with the Hearing today was, he said, by reason of the extension of time given to the respondents to produce their documents.
5.	The Tribunal notes however that by paragraph 4.2 of the Order the claimant was given access to his computer for the reasons there set out.  When asked why that access could not have revealed the documents upon which the claimant wished to rely in connection with paragraph 4.3 it was said on the claimant’s behalf that the access ordered under paragraph 4.2 related to the claims for discrimination on the grounds of age and religion only.  It appears to the Tribunal that that is an over-restrictive construction of the words of paragraph 4.2.1 as they refer to a search to gain access to the claimant’s correspondence/emails.  Be that as it may the respondents indicated that no further request had been made to them for disclosure of documents which did not relate to just discrimination on the grounds of age or religion.  They indicated that access would have been granted.  The laptop was available at the Hearing today for the claimant to make a further search should he wish to do so.  The Tribunal granted a short adjournment for this to be done.
6.	Following the adjournment for this purpose the respondent was able to supply to the claimant on a memory stick the documents requested by the claimant and upon which, presumably, he intended to rely in support of his contention that he had submitted a grievance prior to making his claim under the Equal Pay act.
7.	Notwithstanding this disclosure the claimant’s representative requested that there be further disclosure of unspecified documents in case they may amount to a grievance upon which the claimant could rely.  It appeared to the Tribunal that such a request was nothing more than a fishing expedition and bearing in mind it is for the claimant to show that he had submitted a grievance pursuant to Section 32 of the Employment Act 2002 the request for such further disclosure was refused.  The Tribunal notes that in due course, one it is known what claims are proceeding, there will need to be further disclosure.
8.	It was 11.25 am on the morning of the Hearing when the parties returned following the inspection of the laptop and the Tribunal noted that the claimant wished to leave the Tribunal to attend prayers by no later than midday.  It was apparent therefore that there could be no hearing of the matter set out in paragraph 4.3 of the Order quite apart from the fact that the documents were not in hard form.  Accordingly the Tribunal has adjourned the Hearing of the preliminary point set out in paragraph 4.3 of the Order until the 3rd April 2008.
9.	The cause of this adjournment was that the claimant had not taken the opportunity in December 2007 when inspecting the laptop to look for the documents upon which he relied nor did he make any application to the respondents or to the Tribunal for such disclosure when it became apparent that the general disclosure was to be postponed.
10.	In consequence the respondent’s representative applied for the costs of today’s Hearing thrown away.  It was clear that today’s hearing was to be confined to one issue.  The claimant has made no attempt to specify the documents upon which he wishes to rely in connection with that issue.  He has relied upon the expected general disclosure in the hope that one or more of those documents will amount to the grievance which is the subject of paragraph 4.3 of the Order.  This does not seem to be a reasonable way in which to conduct litigation and in any event no attempt has been made prior to today’s hearing to communicate with the respondents regarding the documents so that some progress could be made or alternatively to request an adjournment so that the parties were not put to the expense of attending today.  To come to the hearing and say that the documents were not available without any attempt having been made to attain them is not reasonable.
11.	Counsel indicated that his brief was marked £1500 and requested that sum plus his instructing solicitors costs.  The Tribunal considered that in the circumstances £1500+ VAT to include counsel and solicitors was adequate and accordingly ordered the claimant to pay that sum pursuant to Rule 40(2) of the Employment Tribunals Constitution and Rules of Procedure Regulations 2004.”

Counsel’s submissions
50.	Both Mr Pievsky and Mr Sethi made detailed submissions as well as submitting helpful skeleton arguments.  Given the length that this judgment already is I am sure they will forgive me if I do not set out their arguments in any detail.

51.	For the reasons I now give I agree with Mr Pievsky that this decision of Employment Judge Griffiths cannot stand on the grounds that it was perverse on the facts of this case.  I emphasise ‘on the facts of this case’.  My reasons are as follows.

52.	First, the Appellant’s analysis of the Order of 6 December 2007 was not “over-restrictive”.  He construed the words in their ordinary and natural meaning.  The search on his computer was only to relate to the discrimination claim.  The Order had specifically stated that the grievance issue was to be approached in “2 different ways”: Order paragraph 4.1; EAT bundle page 32.  The provisions relating to the computer search related only to the discrimination claims: Order paragraph 4.2; EAT bundle page 33.  The Respondent’s solicitor expressly confirmed this at the time: EAT bundle page 45.  The Respondent also relied on the point when asking for the Appellant’s discrimination claims to be struck out on 8 January 2008 stating that the “purpose of the exercise … was for the Claimant to identify his grievance in relation to his age and religion and belief discrimination claims”: EAT bundle page 48.  The only person who took a different view of the Order of 6 December 2007 was Employment Judge Griffiths.

53.	Second, the Appellant could not be blamed for not “taking the opportunity” to look for documents relating to equal pay when he was allowed to search the computer in December 2007.  Had he done so, he would have been in breach of an order, and in breach of express instructions given to him by the Respondent.

54.	Third, Employment Judge Griffiths criticises the Appellant for not making a further application at the point when it became “apparent” that general disclosure was to be “postponed”.  However, the Employment Judge makes no finding as to when such postponement did become “apparent” to him.  The Employment Judge knew that the order delaying disclosure was only made some time on 6 February 2008, leaving only one clear day before the Pre-Hearing Review.  The Appellant said that he did not know about it until the hearing on 8 February 2008.  Neither did his representative.  In my judgment the Employment Judge’s reasoning is perverse because it requires the Appellant to have done something he could not have done and it assumes a state of affairs that could not have existed, i.e. that the Appellant had failed to act despite knowing that disclosure had been postponed.  

55.	Fourth, whilst it is technically correct that it is for the Claimant to prove his case and that this includes the issue of qualifying grievances, that principle should in the light of the case law be applied very carefully.  A qualifying grievance is the gateway to the bringing of a claim.  Without it there is no jurisdiction.  The requirements are not onerous.  The qualifying grievance may be contained in any written document which makes it reasonably clear to the employer that an issue is being raised.  It may therefore often happen that the documents upon which an employee may wish to rely are no longer in his possession.  In my judgment there is nothing unreasonable therefore about expecting the employer to disclose documents relevant to the issue of whether a grievance has been made.  Furthermore it is now clear that the Appellant had repeatedly complained, in writing, about equal pay: see EAT bundle pages 79; 80; 82; 105 and 108.

56.	Fifth, there is no indication at all as to whether the Tribunal took into account the means of the Appellant before making its costs order.  This is contrary to the guidance of the Employment Appeal Tribunal in Jilley v Birmingham and Solihull Mental Health NHS Trust & Others (EAT/0584/06 & EAT/0155/07 21 November 2007 at paragraph 44 per HHJ Richardson).  

57.	Sixth, there is no consideration in Employment Judge Griffiths’ judgment of the obvious point that he had known well in advance of the hearing that the Appellant would need to leave at 12.00 pm on that date for reasons of religious obligation.  

Conclusion
58.	For these reasons the appeal is allowed and the decision to award costs against the Appellant of £1,500 together with VAT is reversed.  The correct order is no order as to costs.