Appeal No. EAT/1260/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 4 July 2002

Before
THE HONOURABLE MR JUSTICE MAURICE KAY
MR D J JENKINS MBE
MRS J M MATTHIAS

LONDON BOROUGH OF HACKNEY	APPELLANT

(1) MR L JOSEPH	RESPONDENTS
(2) MR B CAMPBELL

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR P EPSTEIN
(of Counsel)
Instructed by:
Messrs Akainyah & Co Solicitors
308 Seven Sisters Road
London N4 2AG	
For the First Respondent

For the Second Respondent	MR N DE SILVA
(of Counsel)
Instructed by:
Messrs Ashok Patel & Co Solicitors
257 Balham High Road
London SW17 7BD

NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT	

MR JUSTICE MAURICE KAY

1	This is an appeal against part of an Interlocutory Order made in the Employment Tribunal at Stratford on 7 September 2002, when Mr I S Lamb was sitting alone.  The particular issue is one of disclosure of a document.  It is not necessary to say very much about the background to this case.

2	Mr Joseph has presented an application to the Employment Tribunal in which he alleges unfair dismissal and race discrimination.  There is set out in his Originating Application fairly laconic details of his complaint.  It alleges

1	“…bullying, harassment and victimisation in the 12 months to December 25th 1999.”

3	It alleges that management failed to deal properly with such matters.  It alleges unfair dismissal:

2	“…for allegedly fighting on 25th December 1999.”

It is apparently Mr Joseph’s case that he acted in self defence on that occasion

4	He further alleges a failure on the part of Hackney to deal with his case fairly and expeditiously.  He alleges institutional racism on the part of Hackney stating:

4	“This is supported by my treatment prior to December 25th 1999 and subsequent Human Resources failures by Hackney Council.”

5	There is a reference to a failure to provide a duty of care and the details conclude:

6	“The managing director who is to hear my appeal has shown prejudice by refusing to allow an independent report to be concluded before my appeal is heard on October 18th 2000.  The contents of this report I believe could have a big impact on the outcome of my appeal.”

6	The report there referred to is a report that had been commissioned by Hackney from a body called the Independent Referral Unit.  As its name implies, it is independent of Hackney Borough Council and, as we understand it, is in the form of an external consultancy which provides services to Hackney.  It is that report which is at the heart of the present dispute concerning disclosure.

7	When Hackney responded to the Originating Application the case was set out in a number of paragraphs; the early ones of which are primarily concerned with the dispute which occurred between Mr Joseph and his supervisor Mr Campbell at Christmas 1999.

8	The final paragraph in the IT3 includes this passage:

10	“The Respondent had a number of concerns about a variety of management, and operational issues and the organisational culture of the Security and Emergency Services Unit.  In April 2000 the Respondent commissioned an independent external investigator to investigate and report confidentially on a range of management issues including the Applicant’s complaint that he had been the subject of bullying.  The resultant reports covered a wide range of issues in addition to the Applicant’s allegations that he was bullied, primarily by his Supervisor.  Consequently for operational and business reasons the Respondent has not released a copy of this report to the Applicant.”

9	Although the report remains undisclosed the recommendations made by the IRU and the action plan based on those recommendations were disclosed, not as part of litigation disclosure but to all relevant employees, whether engaged in litigation or not.

10	In the Employment Tribunal’s decision the following is stated:

16	“The partial disclosure constituted by the publication of the recommendations and action plan must have a direct bearing on the relevant arguments.  It is apparent from the document disclosed that two very senior managers who had managerial responsibility for Mr Joseph, i.e. Ms Challoner and Mr Khan, had been individually severely criticised: there is a recommendation that they be disciplined on the basis of charges of gross misconduct.  However, the recommendations go further than to apportion blame to those two individuals: they refer to “the investigation’s conclusion than an unacceptable atmosphere of fear has been established”.  Reference is made to the “Council’s commitment to disassembling such a culture and replacing it with one in which the diversity of staff is affirmed”.  Reference is made to “the Council’s regret over what happened in SES in the past year”.”

SES is a reference to the Security and Emergency Services Unit and it was in that unit that Mr Joseph worked.

11	Having heard submissions from Counsel on both sides, the Employment Tribunal, in a reserved decision, ordered disclosure of the report and it is against that order that Hackney now appeals.  In support of the appeal Mr Epstein has advanced submissions under a number of headings.  His primary submission is that the Employment Tribunal applied the wrong test to the question of whether or not disclosure ought to be ordered.

12	So far as the correct test is concerned, Mr Epstein helpfully took us through the recent history of the disclosure obligation.  In the Employment Tribunals (Constitution etc) Regulations 1993, Sch 1 Regulation 4 (1) (b) empowers an Employment Tribunal to require a party to grant to another:

4	(1)	(b)	“…such discovery or inspection…of documents as might be granted by a county court”

13	At that time the relevant provision in the county court was Order 14 Rule 8 of the County Court Rules 1981 provided:

8	“…the court, if satisfied that the discovery, disclosure, production or supply sought is not necessary, or not necessary at that stage of the action or matter, may dismiss or adjourn the application and shall in any case refuse to make an Order if and so far as it is of opinion that discovery, disclosure, production or supply, as the case may be, is not necessary either for disposing fairly of the action or matter or for saving costs”.

14	All this, of course, failed to be considered by Lord Wolfe when he was undertaking the Access to Justice report and Mr Epstein has taken us to the relevant passages in both the Interim and Final reports.

15	The relevant statutory material is now to be found, first in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001, Schedule 1, Regulation 4(5) and thereafter in the Civil Procedure Rules.  Regulation 4(5) is substantially in the same terms as its 1993 predecessor, save that the cross-reference is not to the County Court but to disclosure:

“as might be granted by a Court under Rule 31 of the Civil Procedure Rules 1998”.

16	The Civil Procedure Rules 1998 provide in Rule 31.6:

31.6	“Standard disclosure requires a party to disclose only:

	(a)	 the documents on which he relies; and 
	(b) 	the documents which – 
		(i)	 	adversely affect his own case; 
		(ii)		adversely affect another party's case; or 
		(iii)		support another party's case; and 
	(c)	 the documents which he is required to disclose by a relevant practice direction.”

17	The notes in the Whitebook at Paragraph 31.6 (b) (iii) describe “adverse documents” as being documents “which to a material extent adversely affect a party’s own case or support another party’s case”.  They then refer to “the relevant documents” which are defined as:

“documents which are relevant to the issues in the proceedings but which do not fall into categories 1 or 2 because they do not obviously support or undermine either side’s case.  They are parts of the story or background.  The Category includes documents which, though relevant, may not be necessary for the fair disposal of the case.”

18	Mr Epstein submits that so far as the present issue is concerned the correct test is a two stage test.  The first question is: is the document relevant?  The second stage is: if so, is its disclosure necessary for the fair disposal of the case?  His complaint about the decision of the Employment Tribunal is that it did not apply to that two stage test and confined its concern to relevance, thereby ignoring necessity.

19	The hearing before the Employment Tribunal included submissions on behalf of both parties.  Whereafter, with the consent of both parties the Chairman was given the report to read.  Neither then nor now has it been read by Mr Joseph’s legal advisers.  The Employment Tribunal concluded:

20	“Having read the report, I understand clearly why the investigators and the commissioner said that they were “appalled” by what they uncovered.  It is indeed a sorry tale.  In my judgment, it is not possible to understand accurately the recommendations and planned actions without reading the findings which gave rise to them.  It is perfectly clear that those findings of fact, which are lucidly and cogently set out, are based upon evidence given to the investigators by witnesses whose identities have been kept anonymous…In my judgment its use in that way is a sufficient safeguard and disclosure is justified by the interests of justice in ensuring that such relevant material as is contained in the report, is available to both parties to ensure that there is a fair hearing because there are parts of it which are obviously relevant to the case which the Applicant is entitled to put forward, in support of his complaints, and to counter the Respondent’s defence.”

Mr Epstein submits that in that passage the Employment Tribunal is applying a test of relevance alone and does not address the further and crucial test of necessity.

20	In our judgment, that submission is incorrect.  The Employment Tribunal, it is clear, was convinced that a fair hearing (which is synonymous with the fair disposal of the case), required that the relevant material contained in the report be disclosed.  We attach particular significance to the words “to ensure that there is a fair hearing”.  It is apparent from those words that the view of the Employment Tribunal was that if the report was not disclosed a fair hearing could not be “ensured”.

21	It is apparent to us that the Employment Tribunal was saying, by implication, that disclosure of the report was necessary in order to ensure the fair disposal of the matter.  Although the word “necessary” or “necessity” is not used, in our judgment the language used is equivalent in every respect to, and consistent with, the test as Mr Epstein has identified it.  Accordingly, we do not find the primary ground of appeal to be correct.

22	The second ground of appeal is essentially a perversity argument.  We remind ourselves that the Employment Tribunal had read the report with the consent of both parties, although Hackney did not and does not consent to disclosure to Mr Joseph or to his legal advisers.

23	The decision to disclose, or to order disclosure, was clearly taken in the light of an appraisal of the contents of the report and in the light of the submissions that were made on behalf of Hackney.

24	Those submissions are referred to in the body of the decision.  It seems that it was submitted that if disclosure were ordered there would be a real risk that a substantial amount of irrelevant material would be introduced because the report ranges beyond the actions of those people named in the matter before the Tribunal.  It was further suggested that disclosure would impede the role of the Tribunal in reaching its own findings of facts on the evidence before it.
25	It was suggested the report would tend “to take on a life of its own” when in fact its contents were simply opinions and judgments on the evidence before the investigators.  It was said that the additional evidence would increase the length of the hearing and that would be unjust; presumably, that embracing a reference to costs.  The Employment Tribunal considered those matters and indeed, in paragraph 19 of the decision, accepted the validity of the arguments.

26	There was also a consideration of the fact that the report contained a lot of confidential material, which would be highly damaging if it emerged in the public domain.  Indeed it was that which led to the accommodation of the Employment Tribunal seeing the report for itself.

27	Towards the end of the decision of the Employment Tribunal it is stated:

20	“I therefore fully appreciate the risk that those findings will take on a life of their own, overlapping with the Tribunal’s duty to reach its own findings on the evidence before it at the hearing.  That said, I am confident that the Tribunal, and in particular the Tribunal Chairman, will be perfectly capable of ensuring that the way in which the report is relied upon in the course of the evidence will be appropriate and relevant.”

28	Mr Epstein acknowledges that it would be impossible for us to say that the Employment Tribunal’s assessment of the contents of the report was, in itself, perverse.  We have not seen it.  Mr Joseph, through Mr De Silva, would consent to us seeing it, but only on the basis that it was disclosed also to Mr De Silva so as to enable him to make submissions upon it.  Mr Epstein in turn, and on instructions, does not consent to that.

29	Accordingly, we do not think there is any dispute about this.  We cannot say that the Employment Tribunal perversely appraised the report.  That causes Mr Epstein to fall back on a different perversity argument.  It is essentially that, having regard to the submissions which he made to the Employment Tribunal and to the context of the dispute in the case, no reasonable Employment Tribunal could have ordered disclosure.

30	We reject that submission.  We are satisfied that the Employment Tribunal was entitled to evaluate the submissions, as it did.  The issues in the case are not limited to the altercation that gave rise to the dismissal.  The allegation of race discrimination relates to a 12-month period embracing allegations of more than 30 incidents and a general allegation of institutional racism.  In our judgment it cannot be said that it was perverse to order disclosure.

31	We turn then to the third ground of appeal.  The decision of the Employment Tribunal includes express references to a number of authorities including Birds Eye Walls Limited v Harrison [1985] 278, O’Shea Construction Ltd v Bassi [1998] ICR 1130 and West Midlands P T E v Singh [1988] ICR 614.

32	The complaint advanced by Mr Epstein is that these authorities were not cited or referred to in the course of the hearing.  Accordingly, it is suggested, the Employment Tribunal ought not to have taken them into consideration without inviting further submissions.

33	In our view, the propositions included in the decision and based on the authorities are self-evident and incontrovertible.  Moreover, the reason for the decision to order disclosure is not to be found in one or more of those self-evident and incontrovertible propositions, it is to be found in the passage which we quoted extensively when dealing with the first ground of appeal.

34	The issue was whether the correct test was applied.  We have already said that, in our judgment, the test that was applied was entirely consonant and consistent with the correct test and indeed was an application of it.  We can find no error in the reference to the authorities and no error in the omission to invite further submissions.

35	There is a further point raised by Mr Epstein.  It is apparent from part of the reasoning of the Employment Tribunal, to which we have referred, that the Tribunal considered that it was:

“not possible to understand accurately the recommendations and planned actions without reading the findings which gave rise to them”

That, of course, is something which is linked to the contents of the report and a question is raised as to whether following the reading of the report the Employment Tribunal ought to have invited further submissions on that subject.

36	In our judgment, the answer to that must be in the negative.  Moreover, it seems to us that there was only one side that would have been in a position to make such submissions, because Mr De Silva was not and is not in a position to make submissions upon a document that he has not seen and sight of which is denied to him.  We, therefore, come to the conclusion that this ground of appeal, based as it is on Hereford and Worcester County Council v Neale [1986] IRLR 168 is without merit.

37	In the course of the very able submissions that have been made on both sides it was suggested that we might like to give general guidance arising out of the circumstances of this case.  We have considered that.  However, we take the view that the circumstances of this case are highly specific and we do not propose to express ourselves in more general terms than we have in this judgment.  It follows from what we have said that the appeal will be dismissed.