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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Tradition Securities & Futures SA v X & Anor [2008] UKEAT 0202_08_1808 (18 August 2008) URL: http://www.bailii.org/uk/cases/UKEAT/2008/0202_08_1808.html Cite as: [2009] ICR 88, [2008] IRLR 934, [2008] UKEAT 202_8_1808, [2008] UKEAT 0202_08_1808

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APPEARANCES

 

For the Appellant	MR PAUL GOULDING Q.C. and MR DAVID CRAIG (of Counsel) Instructed by: Messrs Mishcon de Reya Solicitors Summit House 12 Red Lion Square London WC1R 4QD
For the Respondents	MR JAMES LADDIE (of Counsel) Instructed by: Messrs Russell Jones and Walker Solicitors Swinton House 324 Gray's Inn Road London WC1Z 8DH

SUMMARY

SEX DISCRIMINATION: Jurisdiction

JURISDICTIONAL POINTS: Working outside the jurisdiction

Where an employee of French nationality had worked for a French registered company for three years in Paris followed by two years in London, and alleged a course of sex discrimination and harassment against her extending over the whole five year period, the allegations of discrimination in Paris were not justiciable in an English employment tribunal.


 


THE HONOURABLE MR JUSTICE BEAN

1. There are three appeals before us by Tradition Securities and Futures SA ("Tradition"), a French company who are the Respondent to claims of (among other things) sex discrimination and harassment brought by two of their employees. The first raises a question of some general importance which may be stated as follows. An employee of French nationality works for a French registered company for three years in Paris followed by two years in London. She alleges a course of sex discrimination and harassment extending over the whole five year period. Are the allegations of discrimination in Paris justiciable in an English employment tribunal?
2. The Claimants are twin sisters, Muslims, French citizens and of Moroccan origin. Their claims are due to be heard in an employment tribunal beginning on 29 October 2008. Since the claims involve allegations of sexual misconduct the Tribunal has already made a restricted reporting order prohibiting the identifying of either the Claimants or the individuals employed by the appellant company against whom such allegations are made. For the avoidance of doubt we made the same order in respect of the proceedings before us.
3. In October 2001 the First Claimant began employment with Tradition in Paris. In October 2004 she moved to their London office. The Second Claimant began employment in the same London office in November 2004. Their last day at work was 2 November 2006. The following day they consulted solicitors and on 8 November 2006 lodged a grievance. Their first claims were presented to the Employment Tribunal on 26 March 2007, followed by further claims on 30 May 2007. The employers now appeal against three interlocutory decisions of the Employment Tribunal:- (a) that the Tribunal has jurisdiction to hear the complaint by the First Claimant in relation to acts done during her time in Paris from 2001 – 2004; (b) that the Claimants had not waived privilege in respect of solicitors' notes of two meetings with them on 3 November 2006 and 21 February 2007 and a series of subsequent emails between the solicitors and the Claimants; (c) that the period for hearing oral evidence was to be limited to 8 weeks divided equally between the witnesses for the Claimants and for the Respondent.

The territorial jurisdiction appeal

4. Section 6(2) of the Sex Discrimination Act 1975 ("the SDA") provides, so far as material:-

"It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her…."

5. Section 10 (1) of the SDA, as it stood before its amendment in 2005, provided:-

"For the purposes of this Part… employment is to be regarded as being at an establishment in Great Britain unless… (a) the employee does his work wholly outside Great Britain…"

In 2005 this was amended to provide that employment is to be regarded as being at an establishment in Great Britain "if… the employee does his work wholly or partly in Great Britain", but it is agreed on all sides that the pre-2005 text is the relevant one for present purposes.

6. Obviously the First Claimant, in the period from 2001 to 2004, was working wholly outside Great Britain. A layman might think that this was a complete answer to that aspect of her case. But employment law is rarely so simple.
7. The leading case on the territorial reach of the discrimination statutes is now Saggar v Ministry of Defence [2005] ICR 1073. The applicant had worked for the Ministry from 1982 to 1998, primarily based in England. In 1998 he was posted to Akrotiri, Cyprus. (The fact that this is a British sovereign base was immaterial: see paragraph 14 of the judgment of Mummery LJ.) In 2000 he presented a complaint alleging racial discrimination against him by his commanding officer in Cyprus. The issue was whether the employment tribunal had jurisdiction to hear the case.
8. Saggar was a case of racial discrimination but nothing turns on the distinction between the two statutes. Section 4 of the Race Relations Act 1976("the RRA") is equivalent to s6 of the SDA, and s8 of the RRA to s10 of the SDA.
9. Mummery LJ, giving the only substantive judgment, said:-

"11 To characterise the issue as one of "territorial jurisdiction", as the employment tribunal did,… does not shed much light on the problem. Indeed, it does not accurately reflect the basis of protection, as it exaggerates the territorial aspect of Part II of the 1976 Act. Territoriality was the theme of the submission of the Ministry of Defence that "all of the material events took place in Cyprus". In some respects territory is irrelevant to the question whether an employee is protected by Part II of the 1976 Act. The fact that, for example, an act of race discrimination is alleged to have been committed by an employer against an employee outside Great Britain does not of itself deprive the employment tribunal of jurisdiction to determine the complaint. If the employment of the employee is regarded as being at an establishment in Great Britain, Part II of the 1976 Act applies. It does not cease to apply simply because the employee was outside Great Britain, either at work or even away from work, at the time when the alleged racial discrimination occurred or because the alleged acts of discrimination took place outside Great Britain.

12 As will be explained, the history of the employment relationship has a greater bearing on protection from racial discrimination than the geography of where the alleged discriminatory acts occurred or where the applicant was when they occurred. The focus of the provisions in Part II defining who is entitled to protection is on whether "employment" is to be regarded as being at an establishment in Great Britain and on whether the employee "wholly or mainly" does his work outside Great Britain.

13 Unfortunately it has not proved possible (and it probably never will be possible) to achieve legal certainty in this area, either by the legislation or by the judicial interpretation of it. The practical difficulty in framing the legislation and in judicial generalisations about its effect is that employment relationships are increasingly complex, flexible and dynamic: they can endure for varying lengths of time; during the course of the relationship places, patterns and countries of employment can change; acts of discrimination may occur before the employment begins, during the period of employment or after the employment is over; and the discrimination may be a one-off act in one place, or a number of one-off acts in different places, or it may be an act extending over a period in one place or in a number of different places. In these circumstances it is difficult to find a satisfactory formula for fixing the boundaries of protection from discrimination and of the jurisdiction of the employment tribunal to determine complaints."

10. It is to be noted that at paragraph 16 Mummery LJ set out as the relevant statute "the version… in force at the date of the alleged acts of discrimination" [our emphasis]. He said at paragraph 17 that the two relevant sections "should be interpreted to promote their legislative purpose and with as much good sense as their language allows". He continued:-

"17(5) Employment is not to be regarded as being at an establishment in Great Britain if the applicant "does his work wholly or mainly outside Great Britain". If that is the case, the applicant is excluded from protection and the employment tribunal has no jurisdiction to determine a claim of race discrimination. That would be so even if the alleged act of discrimination was committed against an employee in Great Britain.

(6) A complaint to an employment tribunal must relate to an unlawful act committed against the complainant contrary to Part II of the 1976 Act: section 54(1). A person has no right to complain to the employment tribunal about acts of race discrimination, if, at the time when they were committed, it was lawful to commit them against the complainant. If the complainant did his work wholly or mainly outside Great Britain at the time of the alleged discrimination, he had no right to present a complaint of race discrimination to the tribunal. Section 8(1) excluded him from the protection of Part II.

(7) How does the employment tribunal determine whether or not an applicant did his work "wholly or mainly outside Great Britain"? There is no express provision in Part II preventing the employment tribunal from taking into account the fact that, before the period during which the alleged unlawful acts of discrimination occurred, the employment of the applicant was at an establishment in Great Britain. On the contrary, it is, I think, implicit in the "wholly or mainly" formulation in section 8(1) that, on a challenge to the applicant's assertion that his employment was at an establishment in Great Britain, the tribunal should take into account the employment of the complainant over a longer period of time than the period to which the alleged acts of discrimination relate. What is the relevant period of time for this purpose? That is the key question, to which I shall return when considering the decisions of the employment tribunal and the appeal tribunal."

[It should be noted that with effect from 16 December 1999 the words "or mainly" were omitted from section 10 (1) of the SDA and from Section 8 (1) of the RRA.]

11. Mummery LJ concluded that the Employment Tribunal had made an error of law in only taking into account the period of time to which the complaints of discrimination related (that is the applicant's time in Cyprus beginning in September 1998) for the purpose of deciding whether he wholly or mainly did his work outside Great Britain. They did not take any account of the earlier period of time during which his employment was (at any rate mainly) at an establishment in Great Britain. He went on:-

"26…. Although the right to present a complaint to an employment tribunal has to be addressed by reference to the situation of the employment of the applicant as at the time of the alleged unlawful discrimination, there is no express or implicit requirement that, in deciding whether the applicant did his work wholly or mainly outside Great Britain at that time, account should only be taken of where the applicant did his work during the period of time to which the complaint of discrimination related.

27 In my judgment section 8(1) contemplates that the relevant period for determining whether the applicant did his work wholly or mainly outside Great Britain is the whole period of employment. "Employment" is the entire relationship between employer and employee. It extends over a period of time. Normally the employment should be taken into account as a whole and not in segments. This approach is indicated by the opening words of section 8(1), under which employment has a continuing existence ("being") and a continuing location ("at an establishment in Great Britain"). The latter part of section 8(1) ("unless the employee does his work wholly or mainly outside Great Britain") also indicates that the whole period of the employment relationship, not just the limited period during which the discrimination is alleged to have occurred, is the yardstick by which it is determined whether, at the time of the alleged discrimination, the employee wholly or mainly did his work outside Great Britain.

28 In my judgment, none of the authorities cited as binding on this court prevent the court from construing Part II of the 1976 Act in the above manner. The cases do not require this court to hold that, as a result of being posted to Akrotiri towards the end of his service, the applicant lost all the protection that he might have acquired under Part II by virtue of earlier employment at establishments in Great Britain over the previous 16 years or so."

12. Mummery LJ went on to refer to the decision of the Court of Appeal in Carver v Saudi Arabian Airlines [1999] ICR 991, and said:-

"33 As explained earlier, I agree that the questions of the jurisdiction of the tribunal and the right to present a complaint to it have to be considered as at the time of the alleged unlawful discrimination. The tribunal must decide whether, at that time, the applicant "wholly or mainly" did his work outside Great Britain. The Carver case did not, however, lay down a test of how the question of "wholly or mainly" was to be answered or hold that that question was to be answered solely by reference to the period of time during which the alleged discrimination occurred, disregarding the whole of the earlier history of his employment at establishments of the employer in Great Britain. In deciding whether an employee did his work "wholly or mainly" outside Great Britain the tribunal is not precluded by the Carver case from taking the whole employment relationship into account. …"

13. The pre-hearing review in the present case came before a full tribunal (Employment Judge Solomons and two lay members) and was heard over 7 working days including 2 days in chambers between 30 October and 14 November 2007. In their reserved judgment
    

promulgated on 31 January 2008 they said:-

"The Paris allegations concern sexual harassment, direct sex discrimination and victimisation under the provisions of the Sex Discrimination Act. They are similar types of allegations to those made in respect to what occurred when the [first claimant] was working for the First Respondent in London, although for the most part the perpetrators of the acts of discrimination are different persons. It is also important to note that the claimant's case is that when the claimant worked in Paris up to and including the end of the period when the claimant was working in London. The Tribunal passes no comment on the merits of the allegations, which are for a full Tribunal to determine upon all the evidence, but if it be the case that there was an act of sex discrimination extending over the period from the time of the work in Paris, up to and including the time of the work in London then that is an important factor in determining the territorial jurisdiction point. …

20 The Tribunal considers that the judgment in Saggar makes it clear that, although the question of jurisdiction is to be considered on the basis of the whole period of employment being taken into account, the question is whether or not at the time of the alleged discrimination it could be said that the claimant did her work wholly or partly in Great Britain. It is clear upon the material before the Tribunal at the Pre-hearing Review that at the time of the individual acts which are alleged to have taken place in Paris the [first claimant] did not do her work wholly or partly in Great Britain; it was entirely work done in France. However, if it can be said that the individual acts in Paris were part of an act of harassment, direct discrimination or victimisation extending over a period which covers both the work in Paris and the work in London then it seems to the Tribunal that there would be jurisdiction to consider the allegations in relation to what occurred in Paris as part of a continuing act extending up to and including the period of employment in London. It is not for this Tribunal at the Pre-hearing review to determine whether or not what occurred in Paris is part of a continuing act of discrimination covering the period both in Paris and in London. Indeed, in order to determine that question we would have to hear all of the evidence, which we have plainly not done at the Pre-hearing Review. The question, for our purposes, is whether or not it is arguable that there was a continuing act of discrimination covering both the time in Paris and the time in London.

21 The case presented on behalf of the claimant is that there was within the First Respondent's organisation a culture of discrimination which revealed itself both in Paris and in London, effectively connived at by the First Respondent's senior management and that under the Hendricks principle, it is arguable that the individual acts of discrimination are to be properly seen as part of an act extending over a period. Whilst the Respondents in their submissions have made a number of good points in opposition to that contention, bearing in mind that the Tribunal at this stage only has to be satisfied that there is an arguable case of a continuing act, we conclude that we cannot say without hearing the evidence relating to the acts in question, that there is no act extending over a period. Accordingly, it will be for the Tribunal at the merits hearing determine whether or not the acts committed in Paris are part of acts extending over a period, parts of which took place when the Claimant was employed in London. If the Tribunal so determines upon the evidence then the Tribunal will have jurisdiction to determine upon the evidence then the Tribunal will have jurisdiction to determine [her] complaints about the discrimination which took, place whilst she was in Paris."

14. The argument of Mr Paul Goulding QC for the employers is in essence a simple one, although it can be expressed in a number of different ways. The right to bring a discrimination claim before an employment tribunal has to be addressed by reference to the claimant's situation at the time of the alleged unlawful discrimination. At the time of the alleged acts of discrimination committed against the First Claimant between October 2001 and September 2004 in Paris, the employment tribunal in England had no jurisdiction. That position cannot be changed retrospectively by reason of things allegedly done to her later in London.
15. Mr James Laddie, in his powerfully argued response on behalf of the Claimants, reminded us that in Jones v Tower Boot Co Ltd [1997] ICR 254 at 262D Waite LJ said that consistently with the broad front on which it operates, discrimination legislation has traditionally been given a wide interpretation. Waite LJ in turn referred to the celebrated observation of Templeman LJ in Savjani v Inland Revenue Commissioners [1981] QB 458 at 466:-

"the [Race Relations] Act was brought into remedy a very great evil. It is expressed in very wide terms, and I should be slow to find that the effect of something which is humiliatingly discriminatory in racial matters falls outside the ambit of the Act."

16. Mr Laddie points out that section 10 of the SDA, defining employment at an establishment in Great Britain, contains no temporal limitations. That is of course correct as far as it goes. But s.10 is only the definition section. It is section 6 of the SDA which either does or does not confer jurisdiction in the present case. An employment tribunal cannot widen its statutory jurisdiction simply because it may be thought desirable to do so.
17. Mr Laddie concedes – inevitably – that if the First Claimant's employment had ended on 30 September 2004 the allegations of discrimination and harassment against her by fellow employees of a French company in Paris could not have been justiciable in England. He adopts the employment tribunal's reasoning, however, and submits that the discriminatory acts committed against her throughout the period from 2001-2006 amounted to an "act extending over a period". By the end of the period she had been in England for two years and, he argues, the employment tribunal therefore had jurisdiction.
18. "Act extending over a period" is a phrase found in s 76 of the SDA, a section dealing with the time limit for bringing an application. Mr Laddie accepts that s 76 cannot assist him, since section 76(6)(b) only provides that for the purposes of this section – that is to say, for limitation purposes – an act extending over a period is treated as being done at the end of the period; but he submits that "the concept of an act extending over a period is not limited to SDA s 76", nor created by that statutory provision, and that it is an apt description of what was done to his clients.
19. This analysis cannot, in our view, confer jurisdiction retrospectively, for example to give the tribunal jurisdiction over an act done in England which was not unlawful at the time it was done. Suppose, for example, an employee claimed to have been discriminated against on the basis of his Christian beliefs over a period from October 2001 to September 2004. The Employment Equality (Religion or Belief) Regulations 2003 came into force on 2 December 2003. Until they did so an employment tribunal had no jurisdiction to consider complaints of religious discrimination (leaving aside those which could be treated as discriminatory under the Race Relations Act). Whether or not the employee could successfully argue that the discrimination against him could be described as an "act extending over a period", or could constitute one for the purposes of regulation 34 (4)(b), we are in no doubt that the employment tribunal could not retrospectively acquire jurisdiction over the acts of alleged discrimination committed before 2 December 2003.
20. Mr Laddie seeks to distinguish this hypothetical case by reference to European law. He submits that the discrimination against and harassment of the First Claimant in Paris were contrary to the Equal Treatment Directive (and no doubt contrary to French law, which we are content to assume implements that Directive). The acts were therefore "unlawful" when they were committed and where they were committed. So treating the series of acts from 2001-2006 as an act extending over a period, and saying that, viewing that period as a whole, the First Claimant did not work wholly outside Great Britain does not involve breaching any prohibition on the retrospective acquisition of jurisdiction.
21. We cannot accept this argument. We think that the European law point is a two edged sword, since the natural forum for a complaint of sexual harassment and discrimination in Paris is the Paris Labour Court. In any event, we are concerned with the interpretation of sections 6 and 10 of the SDA. As it happens, the First Claimant is a French citizen who worked for a French company in France and thus, before coming to the UK, had the protection given by French law against discrimination. But suppose one changes the facts of the case so that the other jurisdiction involved is not France but a country outside the EU (we will call it Utopia) where sexist behaviour is rife but there is no legal protection against discrimination. A Utopian woman works for three years for a Utopian company in Utopia. During that period she is subject to what in English law, but not in Utopian law, would be regarded as sex discrimination and harassment. She then comes to work for the same company in London where some further acts of discrimination occur. It would be very curious if the English employment tribunal thereby retrospectively acquired jurisdiction to consider her complaints of harassment and discrimination in Utopia. Yet that, as it seems to us, is the inevitable consequence of adopting Mr Laddie's interpretation of sections 6 and 10 of the SDA.
22. We therefore allow the employers' appeal on the territorial jurisdiction point and declare that the employment tribunal has no jurisdiction to consider that First Claimant's complaints in so far as they relate to her employment in Paris before 1 October 2004. It will be for the employment tribunal to decide, in the exercise of its case management discretion, to what extent and in what detail it will allow evidence of such acts to be admitted as background material tending to support or weaken either side's case as to what occurred later in London.

The waiver of privilege appeal

23. It is not in dispute that many of the claims in this case are outside the primary time limits and will only fall within the employment tribunal's jurisdiction if either they form part of an act extending over a period and the end of that period falls within the primary time limits or, failing that, if the tribunal determines that it is just and equitable to extend time for presentation of the claims. A tribunal considering whether to exercise its discretion under the "just and equitable" provision requires, as Smith J pointed out in the EAT in British Coal Corp v Keeble [1997] IRLR 336, to consider (among other things) the length of and reasons for the delay; the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action; and the steps taken by the claimant to obtain appropriate professional advice once he or she knew of the possibility of taking action.
24. Since the Claimants ceased work on 2 November 2006, consulted solicitors the next day but only issued proceedings on 26 March 2007, there was plainly an onus on them at the pre-hearing review to give reasons for the delay. As to this, the First Claimant, having referred to a meeting with one of her managers on 2 November 2006, said in her witness statement prepared for the purposes of the pre-hearing review:-

"(para 21) We went to see a lawyer, Samantha Mangwana at Russell Jones & Walker the day after the meeting, but at that stage it was too difficult for either of us to speak very much about what had happened to us. I remember that both [my sister] and I were just crying and crying when we went to see Ms Mangwana and started to talk about what had just happened. Instead of words, it was mainly tears that came out. I felt so emotional when [my sister] was talking about the photograph incident, and then found it almost impossible to speak; she was crying also. It was difficult enough for both of us just trying to summarise what had happened at our meeting; we were both in a terrible state. It was not for many months that is became easier to talk about everything that had happened; at that stage we were both still very repressed, and neither of us had come to terms with matters enough to talk about them, even to our lawyer."

25. Later in her witness statement the First Claimant says that on 21 February 2007 she and her sister:-

"went to meet with our barrister for the first time to seek his advice. We had to discuss precisely what had happened to us during our work in London, and we started to speak in detail about what the men at the desk had done to us. This was a highly traumatic experience, and I felt ashamed and embarrassed. The more we spoke about it, the more we realised what had happened to us, and the more ashamed and upset we both felt. Actually talking about, and expressing out loud to our lawyers, the daily hell we had faced at hell had brought it all back and it was as if we were living those years of hell all over again. We had survived until then by trying to block everything out, to forget it all. At that meeting, it was as if everything we had repressed came crashing out."

26. After referring to her poor state of health in late February 2007, she continued (at paragraph 43):-

"This really affected our ability to prepare our case. Our lawyers would write us emails seeking further information, but we couldn't bring ourselves to answer them. After a while, we stopped turning the computer on, as we were too scared about what we might find in our email inbox. But we were still obsessive about work, and thought about our case all the time. I would lie in bed thinking about what my lawyer had asked me to do, but I couldn't bring myself to write back to her. She would write more and more emails, but it took us over two weeks to build up the strength to write back to them. It was like a vicious circle. I would avoid my lawyers' emails as I didn't want to think about my case, but the more I avoided them, the more guilty I felt. I felt broken hearted and black inside."

27. The employers contended that these passages in the First Claimant's witness statement, adopted by the Second Claimant in her statement, waived privilege in any attendance note made by the solicitor of the meetings in November 2006 and February 2007, and in the email correspondence referred to in the last paragraph.
28. The relevant principles in relation to waiver of privilege were not in dispute. The content, but not the fact, of communications between a client and his legal advisors are privileged. The importance of this principle has been repeatedly stated in the case law. But a party can waive privilege; and whether or not privilege has been waived is to be determined objectively, rather than depending on the intention of the party whose privilege it is (Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529). Where part of a privileged communication has been deployed in a case, fairness generally requires that disclosure be made in relation to the whole of the communication or communications on that issue (see per Mustill J in Nea Karteria Maritime Co Ltd v Atlantic and Great Lakes Steamship Corp [1981] Com LR 132, though we would observe that redacted disclosure is nowadays more common than it used to be). A court or tribunal does not have any discretion to relieve a party from the consequences of its own waiver of privilege.
29. In its written reasons for judgment on this issue following the pre-hearing review the Tribunal said that the paragraphs of the First Claimant's witness statement to which we have referred "described the difficulty which [she] contends she had because of her state of mind explaining to her lawyers what conduct she had been subjected to at the hands of the Respondent". The Tribunal continued:-

"However it is important to note that these passages in the witness statement in essence describe the claimant's state of mind and not the detailed contents of the communications to her solicitors or counsel. In so far as there is any reference to the contents of the clients/lawyer communications such reference is in the view of the Tribunal fleeting and tangential. Indeed it serves only to provide a context for the descriptions of the claimants' states of mind. This conclusion is one which it was submitted on behalf of the claimants the tribunal should draw, and we agree with these submissions….

6… It must be remembered that the purpose of the evidence which is referred to in the witness statements is to enable the Claimants to set out material upon the basis which they will be in a position to submit that it is just and equitable to extend time in order for a Tribunal to properly consider that contention. It is necessary for the Tribunal to have regard to all the circumstances and so the Claimants have to explain:

that they were unable to give full instructions to their lawyers and

why they were unable to do so

The Claimants should be in a position to be able to do that without waiving legal professional privilege. Of course, whether they have waived privilege depends upon the extent to which they go in giving evidence. The Tribunal concludes that the evidence in the various paragraphs referred to above is plainly directed towards the Claimants' inability to articulate what had occurred because of their mental state. In so far as there is any reference to the contents of the client/lawyer communications we agree with the submission made on behalf of the Claimants that such references are fleeting and tangential, serving only to provide a context for the descriptions of the Claimants' states of mind. The evidence that they have given is not truly evidence of the contents of the privileged communications but only evidence of their own state of mind and ability to give instructions over the material period of time.

7…In those circumstances the Tribunal concludes that by virtue of the passages in the witness statement which are relied upon by the First Respondent, the Claimants have not waived privilege and in those circumstances, the principle of legal professional privilege must apply and the First Respondent's application for disclosure which is supported by the Second Respondent is refused."

30. We entirely agree with the Tribunal's reasoning and conclusion. The employers' appeal on the waiver of privilege issue is accordingly dismissed.

The length of hearing appeal

31. At a case management discussion held on 14 April 2008 by Employment Judge Potter sitting alone the judge directed that a period of 8 weeks, from 29 October – 23 December 2008, be allocated for the hearing of evidence in the case and a period of 5 - 23 January 2009 for Tribunal deliberations, with the parties exchanging written submissions on 7 January and making oral submissions on 8 and 9 January 2009. Paragraph 2 of the order reads:-

"As to the duration of the hearing, the Judge considered it proportionate that the evidence should be concluded in 8 weeks, giving each party 4 weeks for cross examination of the other side's witnesses. This time estimate was on the basis of statement being taken as read. A particular factor which the judge took into account was the fragile mental health of the Claimants and the risk that if their cross examination was unduly extended that the toll on their health would be too great, resulting in the trial becoming ineffective."

32. The Tribunal had been informed that the Claimants anticipated calling 10 witnesses including themselves. The Respondent anticipated calling 23 witnesses. In addition there was likely to be one medical expert on each side. Some of the witnesses are French speakers but most of these are reasonably competent in English, so that an interpreter will for the most part be needed only to give assistance with the occasional phrase rather than interpreting every question from English into French and every answer from French into English.
33. Mr Goulding submits that in ordering that the evidence be completed within 8 weeks the Tribunal failed to take into account the fairness of that order to the Respondent; failed to take into account proportionality to the complexity of the issues; overlooked the need to have time to read witness statements if they are to stand in evidence in chief; and took into account an irrelevant factor, namely an assumption as to the state of the Claimants' health and the possible consequent risk of an ineffective trial. As to proportionality, he observes that the Claimants allege that they have suffered loss running into millions of pounds. They have made at least 200 separate allegations. He suggests that on a reasonable estimate it will take an average of half an hour to cross-examine the Claimants on each allegation and this process alone, accordingly, will take four weeks without giving a moment for any other witness on the Claimants' side to be cross-examined. The Claimants are likely to lodge lengthy and detailed witness statements and the Respondent must be permitted to challenge every point made in them in detail. Mr Goulding also complained of the Tribunal's assumption that the Claimants' mental health would be fragile at the trial.
34. Taking the last point first, it is well known to practitioners in discrimination cases that claimants making allegations of a prolonged course of discrimination and harassment may find the experience of giving oral evidence a great strain. The respondents defending such claims must nevertheless be given a proper opportunity to cross-examine the claimants to demonstrate, if they can, that the claims are ill-founded; but the claimants, like all witnesses, are entitled to be treated with courtesy and respect; and it is the duty of the tribunal to ensure that these principles are put into effect. We do not think that the learned judge holding the case management discussion, who had not heard oral evidence, was making a finding that the Claimants' mental health is fragile or that it will be fragile at the trial. The reference should perhaps have been to "what is said to be the fragile mental health of the Claimants". In any event, we do not think that there is anything to mark this case out in that respect from other major discrimination claims.
35. Fixing the length of a hearing is pre-eminently a discretionary case management decision for the employment tribunal and the EAT should not interfere unless the tribunal has erred in law. We do not think that it has. Far from it. We think it is highly desirable that the length of tribunal hearings should be kept within reasonable bounds. This case is not a public inquiry into everything that has happened at the Respondent company for several years past, and it should not turn into one. It will be concerned (given our ruling on the territorial jurisdiction issue) with how two women were treated over a two year period when they were employed in London, and how their grievances were subsequently dealt with. In addition, background evidence as to how the First Claimant was treated in Paris for three years before moving to London will be admissible, but only to the extent that the tribunal in the exercise of its discretion permits it. We are confident that the able and experienced advocates appearing in this case will be able to cross examine the other side's witnesses properly and in appropriate detail within the time available. This appeal is likewise dismissed.