Geneviv Boohene & Ors v The Royal Parks Ltd

I have set out the relevant terms of section 41 of the 2010 Act at para. 16 above. As a matter of formal analysis, determining whether the section applies in a given case involves answering three distinct questions:

In the present case we are not concerned with question (1), because RPL did not appeal against the ET’s finding that it was the Claimants’ principal. The issues for us concern aspects of questions (2) and (3). It might seem more logical to start with question (2); but the shape of the argument below and before us makes it more convenient to start with question (3) – that is, whether the discrimination complained of by the Claimants falls within the scope of section 41 (1), being ground (1) of the Respondent’s Notice.

As appears from my summary at paras. 31-39 above, the ET did not expressly address question (3): the only issue which it considered under section 41 was whether the Claimants were contract workers (question (1)). Having established that they were, it proceeded to consider the various issues that arose under section 19 (i.e. question (2)), and it did not return to consider whether the discrimination which it found fell under any of the heads under section 41 (1). In fact its findings in relation to questions (1) and/or (2) to some extent cover the relevant ground; but the fact remains that we have no reasoning from the ET directed to the actual language of heads (a) and (d).

The EAT, unlike the ET, did expressly consider the basis on which section 41 (1) applied. The relevant discussion is to be found at paras. 62-72 of its judgment and can be summarised as follows.

After dealing with some preliminary matters, at para. 65 the EAT sets out the terms of section 41. It continues:

Having thus dealt with the overall approach, the EAT gives its essential reasoning at paras. 69-72. At para. 69 it says:

The EAT then goes on at para. 71 to set out various respects in which the ET’s findings showed RPL exercising control over Vinci’s relationship with its employees working on the toilets and cleaning contract. These principally concern its control over whether the LLW was paid. It refers to the facts that RPL chose the non-LLW tender; that it reserved the right to revisit the question of payment of the LLW; and that it was its decision which created the eventual change to payment of the LLW – as to all these, see paras. 10-13 above. But it also refers to a finding by the ET that in the course of the pre-contract negotiations in 2014 RPA “did not simply leave it to Vinci to determine minimum levels of pay within the price agreed” but specifically required it to explain how it would be able to keep its costs within the tendered amount if it paid some of its staff the hourly rates quoted.

The EAT’s conclusion on this issue appears at para. 72, as follows:

I respectfully disagree with the EAT’s reasoning and conclusion in those paragraphs. I give my reasons below, but I should make one point by way of preliminary. Although the EAT frames its conclusion in terms of whether the ET “reached a permissible view” on a question of fact – namely whether Royal Parks effectively dictated the terms on which the Claimants were employed by Vinci – the ET had never in fact asked itself that question in the context of the application of section 41 (1) (see para. 50 above). In substance it is the EAT, rather than the ET, which provides the reasoning on the basis of which the Claimants succeeded on this issue.

The starting-point must be to identify the mischief to which section 41 is directed. Part 5 of the 2010 Act is concerned, broadly, with discrimination at work, or – to put it another way – with discrimination in the context of relationships under which individuals provide their work. Typically, the only relevant relationship is the (contractual) relationship between the worker and the employer, so that any discrimination which occurs at work is, subject to the detailed provisions of the Act, the responsibility of the employer under section 39. However, the peculiarity of contract work is that access to the work and what happens at work is the responsibility not of the employer but of a third party, i.e. the principal: that situation creates an additional (non-contractual) relationship – “the principal-worker relationship”. The purpose of section 41 is to proscribe discrimination in the context of that relationship.

That statutory purpose is reflected in the way that the specific kinds of detriment (Footnote: ³) identified in heads (a)-(c) are identified. To spell it out:

That distinction is clearly recognised in the reasoning of this Court (Ward and Sedley LJJ and Gage J) in Allonby, to which I have already referred. The applicant in that case was a female part-time lecturer whose employment at a college of further education was terminated when the college decided to change to a system where the services of its part-time lecturers (who were mostly female) were supplied on a self-employed basis through an agency (ELS). Under the new arrangement the college agreed a fee per lecture with ELS, and ELS paid a proportion of that fee to the lecturer. The applicant continued to work under the new arrangements, but it was her case both that her earnings were less than they had been when she was an employee of the college and that she ceased to have access to various benefits. The benefits in question are identified at para 7 of the judgment of the EAT (EAT/1081/98), as follows:

The applicant brought proceedings in the employment tribunal making a variety of claims, including a claim for equal pay and a claim against the college under section 9 of the Sex Discrimination Act 1975, which was in materially identical terms to section 41 of the 2010 Act, for (indirect) sex discrimination against her as a contract worker. We are not concerned with the equal pay claim, which was eventually dismissed following a reference to the European Court of Justice. As regards the benefits other than pay, the tribunal held that for the purpose of establishing discrimination a contract worker could not compare themselves with a direct employee of the principal (“the comparison issue”). This Court held that that was a misdirection and that the claim needed to be remitted to the tribunal. But that was subject to whether a claim could lie against the college at all, even if the correct approach to comparison was followed: it is that which is the material issue for our purposes. I need to refer to the judgments of all three members of the Court.

Sedley LJ gave his decision on the comparison issue at the start of para. 35 of his judgment and observed that thus far the applicant’s argument succeeded. But he continued:

At para. 73 of his judgment Gage J begins by agreeing with Sedley LJ on the comparison issue. He continues:

Ward LJ likewise held that the employment tribunal had misdirected itself on the comparison issue. As regards the scope of the enquiry on remittal he said this, at paras. 91-92 (emphases in the original):

The EAT observed that there was “potentially a tension” between Gage J’s view that if the complaint related to term of the worker’s contract with the supplier no claim could lie against the principal and Ward LJ’s view that “the contractual arrangements” are relevant but not determinative: see para. 69 of its judgment. I will return to that question below, but I should say at this stage that I can see no difference between the judgments of Sedley LJ and Gage J in this respect, so that if Ward LJ is indeed to be regarded as having taken a different view from them he was in the minority.

Although I have had to quote quite extensively from the judgments in Allonby, the basic point made at least by Sedley LJ and Gage J is straightforward, namely that a complaint by a contract worker that the terms of his or her contract with the supplier are discriminatory can only be made against the supplier because such terms are no part of the principal-worker relationship. That reflects the basic structure and purpose of (what is now) section 41, as analysed at paras. 57-58 above.

On the face of it, therefore, the Claimants can have no claim against RPL under section 41, because the discrimination which they allege relates to the remuneration payable under their contracts with Vinci and has nothing directly to do with the principal-worker relationship. Translating that specifically into the terms of heads (a) and (d):

The EAT’s answer to this point, as we have seen, is that the approach taken by Sedley LJ and Gage J in Allonby does not apply in a situation where the principal has “directed” or “effectively dictated” a term of the contract between the supplier and its employees: where (taking a “real-world view”) that is the case, the term in question can properly be regarded as a term of the kind described in subsection (1) (a). Mr Khan supports that distinction. He says that the issue of “dictated terms” did not arise in Allonby, so that Sedley LJ and Gage J’s formulation cannot be treated as determinative of the correct approach in such a case. He also relies on what he says is the more flexible formulation propounded by Ward LJ at para. 92 of his judgment, where “the contractual arrangements” are said to be relevant but not determinative.

I do not accept that it would be right to distinguish Allonby on that basis. I accept that the Court in that case did not have to consider the issue of dictated terms and that its decision may accordingly not be strictly binding. But I believe, for the reasons given above, that the distinction recognised by Sedley LJ and Gage J between detriments which are the result of the terms of the worker’s contract of employment and detriments imposed by the principal accords with the statutory purpose and is reflected in the language of section 41 (1). It would in my view be inconsistent with the rationale of that distinction to treat the terms of the worker’s contract of employment as falling within section 41 (1) even if they could be said to be to a greater or lesser extent controlled by the principal.

If the approach proposed by Ward LJ in Allonby is inconsistent with the foregoing, I would respectfully disagree with him. But I am not in fact sure that it is. Although I do not find para. 92 entirely easy to follow, I am inclined to think that all that Ward LJ is saying is that the principal could contravene section 9 by giving a female contract worker inferior benefits – say, access to canteen or washroom facilities – than afforded to male workers (whether its own employees or other contract workers) notwithstanding that it was not under any contractual obligation to provide the benefits in question.

That conclusion is supported by a further, and in my view cogent, point advanced by Mr Milford. He pointed out that if the Claimants had been basing their claim under section 41 on sex rather than race discrimination there would be a mismatch between the position for which they contend and that obtaining under the equal pay provision (originally in the Equal Pay Act 1970, and now in Chapter 3 of Part 5 of the 2010 Act). The result of the reference to the ECJ in Allonby ([2004] ICR 1328] was to confirm that contract workers cannot bring an equal pay claim based on comparison with directly-employed employees of the principal, because they had different employers and their terms of employment accordingly did not derive from a “single source”. Importantly, the Court said, at para. 48 of its judgment:

That is a sufficient reason to decide this ground in RPL’s favour. But I should say that I am in any event troubled by the implications of the concept of the principal “directing” or “effectively dictating” (on “a real-world view”) the terms of the supplier’s contracts with its workers. The starting-point is that we are not concerned with a case where the principal actually prescribes what a supplier will pay its workers. There is no finding that Royal Parks’ contract with Vinci positively prohibited it from paying the LLW. The reason, evidently, why it did not do so was that the contract was priced on the basis that it would pay its workers £7 per hour, and paying £9.15 would have reduced, and perhaps eliminated, its anticipated profit margin. But that simply reflects the basic commercial reality in every contracting-out situation that what a supplier can afford to pay its workers (and would agree to pay if the principal so stipulated) depends on the overall contract price. The EAT’s reasoning tacitly acknowledges that that kind of control is not enough. Rather, it relied on the specific facts of the present case, in particular the requirement for alternative tenders identifying the rates that Vinci would pay its employees on a LLW and a non-LLW basis and Royal Parks’ retention of the right at some future point to revisit the question of Vinci paying the LLW. But I am not sure that those facts distinguish the present case from the general rule. It is very common in the case of large outsourcing contracts, particularly where competitive tendering is a legal requirement, for the principal to require tenderers to indicate what rates they would pay if awarded the contract: that is important to enable it to assess the commercial viability of the tender (Footnote: ⁵). That additional element of transparency does not affect the fundamental analysis: the principal controls the rates of pay paid by the supplier to its workers in the sense, but only in the sense, that it does in all contracting-out cases. I cannot see that it makes any difference in principle that in this case alternative LLW and non-LLW tenders were sought. That does no more than point up what was anyway the case, namely that Royal Parks could always have made it a term of the contract that Vinci pay the LLW (provided the contract price was sufficient to fund it to do so); and the same, I think, goes for RPA’s reservation of the right to do so in the future. I find it hard to see that any of these facts means that RPL “effectively dictated” what Vinci paid its workers to a greater extent, or in a different way, than is inherent in the principal-contractor relationship.

I emphasise that the concerns expressed in the previous paragraph are not central to my decision on this ground. I believe that the Claimants’ complaint falls outside the scope of section 41 because it is concerned with rights arising from the employer-worker relationship and not the principal-worker relationship, irrespective of any influence that Royal Parks had over the content of those rights. But the absence of any clear markers for identifying at what point the principal’s (inevitable) influence over what the supplier pays its workers crosses the line into “direction” or “dictation” is a further reason for preferring the straightforward criterion which emerges from Allonby.

I should say that I have not found any assistance from the general observations from Harrods Ltd v Remick [1998] ICR 156 and from Allonby quoted at paras. 69 and 70 of the EAT’s judgment. The issue in Harrods v Remick was very different from the issue in this case. As for the passage quoted from the judgment of Sedley LJ in Allonby, it is clear that that was directed to what I have called the comparison issue and not to the issue in the case before us (on which of course his view was in accordance with mine). No doubt the statute must be construed purposively and so that victims of discrimination are not deprived of a remedy in circumstances which it was plainly intended to cover. But in my view the construction which I have advanced above is fully in accordance with the purpose of section 41. It is important not to lose sight of the fact that the worker will always have a right under section 39 to claim against its own employer for any discriminatory terms of his or her contract with it.

My conclusion on ground (1) means that it is unnecessary to consider this ground, and I prefer not to do so. The question whether the evident differences between the circumstances of the directly-employed and indirectly-employed workforces, as summarised at para. 46 (2) above, are material within the meaning of section 23 of the 2010 Act is not straightforward, and it would involve me proceeding on a basis about the effect of section 41 which I believe to be wrong. I would only say that the difficulty of the question reinforces my view that section 41 was not intended to permit workers to claim against the principal in respect of detriments arising from their contract with the supplier.

Both parties accepted before us that, although the issue raised by this ground is analytically distinct from the issue under ground (1), it involved the same considerations. The same reasoning that leads to me to conclude that RPL did not subject the Claimants to any detriment as regards the terms of their contracts with Vinci means also that it cannot be regarded as having applied any PCP to them within the meaning of section 19 of the Act.

For the reasons given above, I would allow grounds (1) and (3) of RPL’s Respondent’s Notice and uphold the EAT’s decision on that basis. That makes it strictly unnecessary to consider the Claimants’ appeal, but I believe that I should nevertheless do so.

The central issue raised by the Claimants’ appeal is whether the ET was wrong to treat the relevant PCP as confined to the workers on the Vinci contract and thus, since the two issues are interdependent (see para. 18 above), to find disparate impact on the basis of a pool consisting only of those workers and RPL’s own employees: see paras. 5 and 68-69 of its Reasons. The ET based its decision about the characterisation of the PCP on its understanding of the Claimants’ pleaded case, but I think it is helpful to start by considering what, on its findings, the correct PCP in fact was.

I do not believe that there is any doubt about what, on the facts as found by the ET (and assuming that section 41 is engaged at all), the correct PCP was. As appears from para. 9 above, it was the policy or practice of Royal Parks, while paying the LLW to its own employees, not to require, or fund, its contractors to pay it to the indirectly-employed workforce. The evidence there summarised clearly shows that that policy applied generally, and not simply to Vinci’s employees on the toilets and cleaning contract: it would indeed be surprising if it were otherwise. The PCP must be defined accordingly.

In his oral submissions Mr Khan relied heavily on the fact that the evidence before the ET did not identify any details of the contracts between Royal Parks and its contractors other than Vinci. He submitted that that was important because, even if the policy had been applied generally, it could not be assumed that the terms of the contracts with its other contractors gave Royal Parks the same degree of control over whether they paid the LLW as had been found in the present case, which was central to whether they should be included in the pool.

I do not accept that submission. The evidence and findings summarised at para. 9 above clearly show that the policy was “applied” to the other contractors in the same sense as it was applied to Vinci. The essential point is that none of the contracts was priced on the basis that the contractor would pay the LLW, but they would of course do so if the contracts were re-priced accordingly. As I have already noted in a different context (see para. 71 above), that would be so as a matter of reality whether or not they had all been asked, as Vinci was, to submit alternative LLW and non-LLW tenders (Footnote: ⁶) and whether or not Royal Parks had expressly reserved the right to revisit “the LLW option”; and that is sufficient by itself to establish that the same PCP was being applied to all outsourced workers.

As already noted, the ET’s definition of the PCP, and thus its choice of pool, depended on the way the case was pleaded. In the context of the preliminary point which it considered at the start of its Reasons (see para. 30 above) it concluded that the Grounds of Claim, properly construed, meant that the Claimants were relying on a Vinci-only pool and that that was accordingly the basis on which the issue of disparate impact should be decided.

I agree with the EAT that it is impossible on an objective construction to read the Claimants’ pleading in the way that the ET did. I have set out the relevant terms of the Grounds of Complaint at paras. 21-28 above. The summary of the claim in para. 2 contrasts the treatment of “outsourced workers” as compared with direct employees. The same language is used in para. 12 (a), where the PCP is expressly defined. “Outsourced workers” is an entirely general description: the pleading does not, as it could have, refer to workers on the Vinci contract. Even more explicitly, para. 13 (a) pleads the relevant pool as comprising “all the Respondent’s directly and indirectly employed staff”. That language is repeated, as I have said, in the Claimants’ Further Particulars. There is on the face of it no reason to read it as meaning anything other than what it says. Indeed, it corresponds to the pool that one would expect to see pleaded, since it is the correct pool on the basis of the facts: see paras. 78-80 above.

The ET’s reasons for reaching the opposite conclusion can be summarised as follows. At para. 3 of the Reasons it referred to a submission by Mr Khan that it was necessary to look at the Grounds of Complaint as a whole and not at para. 12 in isolation: that paragraph had to be construed in the context of the pleading of the particular facts at paras. 4-10, which covered only matters relating to the terms of the Vinci contract. At para. 4 of the Reasons it set out a further argument by Mr Khan to the effect that it was clear from paras. 46-48 of the Grounds of Resistance that RPL had understood the Claimants’ case to be based only on the Vinci pool. Para. 5 of the Reasons reads (so far as material):

As to (a) – the need to read the pleading as a whole – I cannot accept that the way that the facts are pleaded at paras. 4-10 of the Grounds of Complaint justifies reading paras. 2, 12 and 13 in anything other than their natural sense. I have no difficulty with the general proposition that the Grounds of Complaint must be read as a whole, but there is no inconsistency between the Claimants pleading the facts about the Vinci contract, which is a necessary part of their case, but then going on to plead a PCP extending also to workers under different contracts.

As to (b) – how RPL understood the case being advanced – this could in fact be said to be irrelevant: the pleading has to be construed objectively. However, as I understand it, the ET thought that the fact that (as it believed) RPL understood the Claimants’ case to be based on a Vinci-only pool supported its view that that was the correct construction of the Grounds of Complaint. (I should also say – though this is not how either the ET or Mr Khan put the case – that if it was sufficiently clear that both parties had conducted the proceedings on the shared understanding that the correct pool was Vinci-only RPL might have been estopped from contending otherwise.)

Assuming that RPL’s contemporary understanding of the Claimants’ pleading is potentially relevant on that basis, I do not agree with the ET that paras. 46-48 of the Grounds of Resistance show that RPL understood the Claimants to be basing their case on a Vinci-only pool. Paras. 46-47 come under the heading “PCP”. It is necessary to set out the whole section:

I do not find that pleading entirely easy to analyse (and Mr Milford expressly disavowed the alternative pools pleaded in para. 48). But I cannot read it in the same way as the ET appears to have done. The “PCP” section seems, so far as I can understand it, to be making a separate point about whether RPL could be said to be applying any PCP to workers whom it does not employ. As for the “Wrong Pool” section, while para. 48 might in isolation suggest that RPL had understood the pleaded pool to be Vinci-only, that is inconsistent with para. 49, the second sentence of which shows that it contemplated that it could extend to the entire indirectly-employed workforce. Overall, as I read it, RPL’s approach was not directly to respond to the Claimants’ actual pleading but to address more generally how the case might be put and advance arguments as to why none of the possibilities worked. That is not, perhaps, the approach which a purist would recommend, but it is not unusual in a discrimination case for it to take a little time for the issues to be accurately identified. In any event, all that matters for our purposes is whether the Grounds of Resistance evince a clear understanding that the Claimants’ pleading meant the opposite of what, on any natural reading, it says. I do not believe that they do.

Mr Khan also relied on a document which is not referred to by the ET in its Reasons (though it is fair to say that he had relied on it in his closing submissions). This was an e-mail sent by RPL’s solicitors (DAC Beachcroft) to the Claimants’ solicitors (Leigh Day) at the end of the second day of the hearing, referring to the possibility of RPL giving further disclosure. The relevant passage says:

In connection with this strand of the argument Mr Khan argued that the burden was on RPL, if it intended to mount a positive case that a PCP other than the one pleaded had been applied, to plead and prove that alternative case, and to give disclosure of documents relevant to it. That may be so, although it must also be open to a respondent simply to deny that it applied the PCP alleged without proposing an alternative. It may be, as I have said, that RPL’s pleading was not wholly clear about how it was going to argue the case. But, whatever course RPL chose to take, the burden remained on the Claimants to prove the case which they had pleaded. Here their pleaded case was on the face of it based on an all-contractors pool, and if they failed to provide the necessary evidence in support of that pool (if necessary, seeking disclosure of such evidence as they required) it is irrelevant what case RPL did or did not advance. (We cannot of course make any assumption about whether the all-contractors pool would have shown the same disparate impact as the Vinci-only pool.) The Claimants at no stage sought any disclosure from RPL or from the contractors about the terms of the other outsourcing contracts or the numbers of employees working under them who received the LLW or their ethnic breakdown. At para. 83 of its judgment the EAT says:

As to (c) – the Claimants’ ignorance about the other contracts – again the starting-point is that the pleading must be read objectively: the Claimants’ state of knowledge about the matters pleaded is, as such, irrelevant. I would accept, however, that general language in a pleading might have to be read in a more limited sense if it would have been apparent to the other party that the pleader could not have been aware of some matters that were apparently covered by the language used. But that cannot assist the Claimants here. It is clear from the ET’s own findings that UVW knew (and RPL knew that it knew) that the policy of which it complained applied generally to the indirectly-employed workforce. Para. 48 of the Reasons quotes a letter to it from Mr Jarvis dated 10 July 2019, in response to its demand for payment of the LLW, which says in terms that “payment of the London Living Wage is not currently a mandatory requirement on Royal Parks contracts”. It was thus told both that there were other contractors performing outsourced services and that the same policy was applied to them as to the Vinci contract. It would in fact be pretty surprising if UVW was not already aware of both points, but the letter puts it beyond doubt. It is true that it gives no details of the contracts in question, but it was a sufficient basis for the Claimants to plead the existence of a minimum pay PCP applying to the indirectly-employed workforce generally. It makes no difference, at this stage of the argument, that UVW did not know precisely how many employees of such contractors did not receive the LLW: what matters is that their employers were not required or funded to pay the LLW as a minimum and therefore will not have done so. (I would add that, as the EAT found, if UVW felt that it required more information it could have asked for it: see para. 98 below.)

For those reasons, I agree with the EAT’s conclusion that the pool as pleaded by the Claimants consisted of RPL’s direct employees plus the entirety of the indirectly-employed workforce and that it was wrong of the ET to confine its analysis to the Vinci-only pool. Accordingly, I reject the first three grounds of appeal, all of which are variants of the Claimants’ challenge to that conclusion.

It follows that the Claimants did not prove their pleaded case (which was, on the evidence, analytically the correct case) because they did not adduce any evidence about the indirectly-employed workforce apart from the workers engaged on the Vinci contract: more particularly, they adduced no evidence about its ethnic composition, which was essential to proving that the minimum pay PCP had a disparate impact on BME members of the pool.

The Claimants’ fourth ground of appeal challenges the EAT’s decision not to remit the case to the ET. At para. 85 of its judgment it said:

On the face of it, the EAT’s decision not to remit was plainly right. The ET had not misunderstood the case which the Claimants advanced at the hearing about what pool should be used: on the contrary, it accepted it. The problem for the Claimants is that that case did not correspond to their pleaded case and that they had not adduced the evidence necessary to prove that the PCP which they had in fact pleaded had a disparate impact on the relevant pool. It was their responsibility to prove their case as pleaded and they had not adduced the evidence necessary to do so: that being so, there can be no question of their being given a second chance.

Mr Khan referred us to the well-known decision of this Court in Jafri v Lincoln College [2014] EWCA Civ 449, [2015] QB 781, that where the EAT finds that an ET has made an error of law the case should be remitted for reconsideration unless there is only one possible answer. But that does not assist him. The error which the ET made in this case was to decide the claim by reference to a pool other than the pool which had been pleaded. If it had considered the correct pool, there was indeed only one possible answer, namely that the claim failed because no evidence had been adduced to show that the PCP had a disparate impact on BME members of that pool.

Mr Khan also argued that the case should have been remitted to the ET because of RPL’s failure to disclose what he referred to in his skeleton argument as the “evidence of ‘other’ contracts” which the Claimants needed to prove their case: that evidence is said to have been exclusively within its control. In his oral submissions he confirmed that the disclosure in question comprised the terms of the contracts with other contractors, which would have shown whether Royal Parks had the same degree of control over whether they paid the LLW as it did under the Vinci contract, together with whether the contractors in question had in fact paid less than the LLW, and if so to which employees.

It seems to me doubtful whether the Claimants needed more information about the terms of the contracts with other contractors in view of RPL’s consistent acknowledgment, both in correspondence and in Mr Jarvis’s evidence, that its policy of not requiring contractors to pay the LLW applied generally. I accept, however, that for the purpose of the disparate impact assessment they would have had to know what proportion of the other employees in the indirectly-employed workforce received the LLW and (though this was not in fact a point explicitly made by Mr Khan) their ethnic composition, so that an exercise of the kind carried out for the Vinci-only pool (see para. 37 above) could be carried out for the all-contractors pool.

The EAT addressed what was essentially this point at paras. 82-83 of its judgment. At para. 82 it said:

I agree with the EAT’s approach. Applying it in the context of remittal, I do not think it could have been right for it to remit a case which otherwise fell to be dismissed because of any such alleged failure of disclosure.

I would therefore have dismissed the appeal irrespective of my conclusion on the Respondent’s Notice.

It is not comfortable to find that a claim would have failed because of a misunderstanding by a party about what the true issues were and, consequently, about what evidence was required in order to prove their case. Since we were not taken through the full procedural history we are not in a position to judge how it came about that the misunderstanding in this case did not emerge until so late a stage. The EAT, as we have seen, referred to the Claimants having apparently made “a tactical decision … to put the case at trial in a more limited way”, but I do not know what lies behind that rather general label. In the end, however, it was plainly right to hold that, in the absence of any clear understanding to the contrary, the issues to be determined at the hearing had to be based on the Claimants’ pleaded case.

Whatever the origins of the misunderstanding, this case provides a useful reminder of the importance of identifying at the case management hearing what issues emerge from the case as pleaded and what kinds of evidence will need to be adduced by each party (and if necessary obtained from disclosure) in order to prove its case on those issues. The primary responsibility lies with the parties, but there is an important role for the judge in analysing the pleadings and teasing out and resolving any aspect on which the parties may be at cross purposes. That is true in any kind of case, but discrimination (and in particular indirect discrimination) cases are liable to be particularly complicated, and particularly careful analysis is likely to be required.

I agree.

I also agree.