Appeal No. EAT/0617/01

EMPLOYMENT APPEAL TRIBUNAL
COURT NO 76, THE ROYAL COURTS OF JUSTICE
THE STRAND, LONDON WC2A 2LL

	At the Tribunal
	On 19 September 2001

Before
HIS HONOUR JUDGE PETER CLARK
MR D J JENKINS MBE
MISS D WHITTINGHAM

1) MR M FRANKS 2) MR M P SOWERBY 3) MR G HOWELLS	APPELLANTS
4) MR J W RABY

THE TORRINGTON CO LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR ANDREW ALLEN
(Of Counsel)
Instructed by:
Messrs Rowley Ashworth
Solicitors
247 The Broadway
Wimbledon
London
SW19 1SE	
For the Respondent	MS NAOMI ELLENBOGEN
(Of Counsel)
Instructed by:
Messrs Jacksons
Solicitors
Innovation House
Yarm Road
Stockton-on-Tees
TS18 3TN	

JUDGE PETER CLARK

1.	This is an appeal by the 4 Applicants before the Newcastle-upon-Tyne Employment Tribunal, sitting on 23 May 2001 under the chairmanship of Mr N W Garside, against the Employment Tribunal’s refusal to order certain disclosure sought by them.

2.	In April 1999 the Respondent employer carried out a redundancy exercise which resulted in the loss of some 38 out of 220 jobs at their Darlington plant.  In that exercise these Appellants were dismissed, it is common ground, by reason of redundancy.  In November 1998 a similar exercise had been carried out by the Respondent, resulting in the loss of some 80 out of 300 jobs.  On that occasion 3 of the Appellants survived the redundancy selection process; the 4th, Mr Sowerby was not involved in that exercise.

3.	Following their dismissals these Appellants presented complaints of unfair dismissal to the Employment Tribunal.  They were then represented by an official of their Trade Union, Mr Hunter.

4.	Both redundancy exercises were carried out by way of a point-scoring matrix under some 8 separate criteria.  There is no issue as to the reasonableness of those criteria, nor that these Appellants fell within the lowest places in the matrix which meant they would lose their jobs.  The question in these cases is focussed on the fairness of the application of the criteria to these Appellants.

5.	Mr Allen, who appears today as he did below, tells us that it is the nature of the Appellants’ cases that their scores in the 1999 exercise were manipulated so that they would be selected for redundancy for different, but inappropriate reasons in each case.  In support of that case each Appellant, save for Mr Sowerby, points to a reduction in his overall score between the 1998 and 1999 exercises.  It is in these circumstances that an application for additional disclosure was first made by the Appellants’ solicitors, newly instructed, on 17 May 2001.  The documents sought were the scores of all employees in the Appellants pools for selection in both exercises.  That application was put over until the first day of the substantive hearing, 23 May.  The application having failed, that substantive hearing was then adjourned pending the outcome of this appeal.

6.	We begin with certain well-established principles.  First, the Employment Tribunals have a broad discretion to regulate their own procedure; appeals against interlocutory orders can only succeed where an error of law is made out.  Second, disclosure of the kind here sought in a redundancy selection case should only be allowed, if at all, where there is a recognised issue raising a comparative question between the Applicants and other, retained employees.

7.	The short answer to this appeal, in our judgment, is that the Appellants failed to show that the documents sought for comparative purposes were relevant and necessary for the fair disposal of these claims bearing in mind the issues raised in the applications.  Having heard Mr Allen, we are quite unpersuaded that he has made out a case for their disclosure.

8.	On the contrary, it seems to us that this very late application would have resulted in further delay, the substantive hearing having to be adjourned, and caused additional expenses to the Respondent in the form of collecting and collating the material sought and then calling further oral evidence to deal with it at the substantive hearing.

9.	All of these were matters taken into account by the Employment Tribunal, applying the law which in this particular area is clear and has been since the Court of Appeal decision in British Aerospace v Green [1995] IRLR 433.

10.	In our judgment this appeal discloses no error of law on the part of the Employment Tribunal and accordingly it must be dismissed.