Appeal No. EAT/1107/02 TM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 September 2003

Before
HIS HONOUR JUDGE PROPHET
MR B M WARMAN
MR G H WRIGHT MBE

MRS P CONISBEE	APPELLANT

TMS SPICERHAART LTD t/a TMX/HAART ESTATE AGENTS	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MRS HILARY WINSTONE
(of Counsel)
Instructed by:
Messrs Wise Geary Solicitors
The Courtyard
Chapel Lane
Bodicote
Banbury
Oxon OX15 4DB	
For the Respondent	MR MICHAEL LANE
(of Counsel)
Instructed by:
Messrs Birkett Long Solicitors
Ocean House
Waterloo Lane
Chelmsford
Essex CM1 1BD	

HIS HONOUR JUDGE PROPHET

1	The employers are Estate Agents operating on a nation wide basis.  Mrs Conisbee was an Assistant Branch Manager at their Brackley branch until her employment there ceased at the end of 2001.  She submitted an application to the London (North-West) region of the Employment Tribunal in January 2002.

2	The two complaints listed in Box 1 of that application were “constructive unfair dismissal” and “breach of contract”.  However, the contents of what she set out in the details of her complaint indicated that there could well be additional complaints relating to equal pay, sex discrimination other than equal pay, and holiday pay.

3	It can also be gleaned from the Notice of Appearance that there was a good deal of uncertainty as to what were the issues which would in due course arise before an Employment Tribunal for resolution.

4	In our experience most Employment Tribunals giving preliminary consideration to the situation at that stage would have ordered a Directions Hearing with the primary aim of establishing the issues which a full Employment Tribunal would have to determine.  Unfortunately that was not done, and it is clear to us that that failure had particularly serious consequences in this case.

5	When the case came up for hearing before an Employment Tribunal sitting at Bedford it was essential at the outset that the Tribunal should have established, with the co-operation of the legal representatives for the respective parties, what the issues were and in due course set these out at the beginning of their Extended Reasons.  Unhappily that was not done.
6	We understand that the hearing before the Employment Tribunal was on 2 and 3 July 2002 and that there was a chambers meeting for a reserved decision at the end of July.  The Decision and Reasons incorrectly state that the hearing was on 31 July 2002 only.  The decision, apart from a relatively minor matter, was that Mrs Conisbee’s claims failed.  No attempt was made in the decision itself to set out what those specific claims were.

7	Following receipt on 26 September 2002 by the Employment Appeal Tribunal of Mrs Conisbee’s appeal, Mr Justice Burton, the President of the Employment Appeal Tribunal, made an order on 29 October 2002 that there be a Preliminary Hearing of the appeal.  That Preliminary Hearing took place on 9 December 2002 with Mr Justice Elias presiding, when the appeal was set down for a full hearing before the Employment Appeal Tribunal.  We are constituted today for that full hearing where we have heard from Mrs Winston of Counsel on Mrs Conisbee’s behalf and Mr Lane of Counsel on behalf of the employer.

8	This Tribunal is unanimously satisfied that, without specifically addressing each and every ground in the Notice of Appeal, this appeal must be allowed in its entirety on the basis that the whole judgment of the Employment Tribunal is unsatisfactory.  The failure by the Employment Tribunal either at an earlier Directions Hearing (which in this case would undoubtedly have been the better course) or at the outset of the Full Hearing, clearly to establish the issues which required resolution by the Employment Tribunal including, as appropriate, time limit issues, meant that the Employment Tribunal proceeded with no proper direction on the matters before it.

9	That lack of direction appears at various stages in the Extended Reasons, some of which have been identified during this hearing, and which caused the Employment Tribunal to be confused as to what it had to decide.
10	To give just one example of that confusion, at paragraph 39 of the Reasons, notwithstanding that there was apparently no issue identified at the outset as to dismissal being other than constructive, i.e. arising out of a resignation, the Employment Tribunal tackled the possibility of there being an express dismissal.  That point simply illustrates one of the unfortunate consequences of the issues not having been settled at the outset.

11	Since this whole case has to be referred to a freshly-constituted Employment Tribunal, it is, we feel, inappropriate for us to set out in detail other matters which might cause that new Tribunal to believe that it has to determine any issue in any particular way.  That Tribunal must have a free hand to hear the case from the beginning having, we trust, first set up a Directions Hearing to clarify what are Mrs Conisbee’s complaints by reference to the relevant legislation, and what specific issues, including time limit issues, require resolution in respect of those complaints.  Issues relating to pay clearly require particular analysis.

12	However, just by way of example, it is instructive to follow the progress of Mrs Conisbee’s equal pay complaint.  In her Originating Application she says:

“In the 2 ½ years I was A.B.M [Assistant Branch Manager] I never received the salary of the male colleague whose job I took, or even the same salary as my male counterpart in Buckingham.”

13	In the Notice of Appearance nothing is said about her predecessor but it was denied that her male comparator at the Buckingham branch, named as Stephen Gardiner, received a higher salary.  Somewhere thereafter it appears that there was another person who was identified as the correct male comparator at the Buckingham branch.

14	However, when those matters came to be looked at by the Employment Tribunal the written reasons at paragraphs 10-15 are totally unclear as to whether there had been any amendment to named comparators, and whether the Tribunal had examined equal pay in relation to named comparators.  What seems to have happened is that the issues were allowed to turn on comparison with “male ABMs”.

15	It is impossible to ascertain from the reasons what the actual disparities in pay with specific comparators were, and what the explanations were from the employers as to those disparities.  Did the Employment Tribunal accept that a comparison could be made with a predecessor?  There is no analysis of what is described by the Employment Tribunal as a “haphazard” system of pay levels.  Could there be (and we are not of course saying that there was) some in-built prejudice to women, emerging from a haphazard system?

16	Mr Lane has, with the commendable realism of good Counsel, recognised the situation as it has arisen this morning; and he makes the point (and it is a very good point) that the lack of proper pleadings in the early stages of some Employment Tribunal cases, particularly where a party has no legal representation at that stage, can cause difficulties.  It may be with hindsight that the employers here would have been better advised to have requested a Directions Hearing from the Bedford Employment Tribunal, even if that Tribunal did not of its own motion initiate one.

17	However, be that as it may, we now leave this case for a complete rehearing by a differently-constituted Employment Tribunal, emphasising as we do that it powerfully illustrates the potentially serious consequences where Employment Tribunals fail clearly to set out the issues to be resolved prior to embarking upon evidence.