COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL
TRIBUNAL
B e f o r e :
LORD JUSTICE WAITE
and
LORD JUSTICE MILLETT
____________________
BRITISH AEROSPACE PLC | ||
Respondent | ||
Appellant | ||
-v- | ||
D. GREEN AND OTHERS | ||
Appellants | ||
Respondents |
____________________
House, 53/64 Chancery Lane, London, WC2A 1QX. Telephone No:
0171-404 7464. Shorthand Writers to the Court.)
Ashworth, London, SW19) appeared on behalf of the Appellants/ Respondents.
MR. J. HAND Q.C. (instructed by Messrs Nightingales, Manchester)
appeared on behalf of the Respondent/Appellant.
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A. THE LEGAL AND PROCEDURAL BACKGROUND
(1) The test of fairness
".... there are only two relevant principles of law arising from that subsection. First, that it is not the function of the Industrial Tribunal to decide whether they would have thought it fairer to act in some other way: the question is whether the dismissal lay within the range of conduct which a reasonable employer could have adopted. The second point of law, particularly relevant in the field of dismissal for redundancy, is that the tribunal must be satisfied that it was reasonable to dismiss each of the applicants on the ground of redundancy. It is not enough to show simply that it was reasonable to dismiss an employee; it must be shown that the employer acted reasonably in treating redundancy 'as a sufficient reason for dismissing the employee', i.e. the employee complaining of dismissal. Therefore, if the circumstances of the employer make it inevitable that some employee must be dismissed, it is still necessary to consider the means whereby the applicant was selected to be the employee to be dismissed and the reasonableness of the steps taken by the employer to choose the applicant, rather than some other employee, for dismissal."
(2) The degree of scrutiny required of the Industrial Tribunal
"In the event the appellant, apart from throwing out the suggestion that he might have been victimised because of dislike, merely expressed his concern that others, with even less seniority than he and employed in the same work (labouring) had been kept on. In this situation where no other complaints were made by the appellant all that the respondents had to do was to prove that their method of selection was fair in general terms and that it had been applied reasonably in the case of the appellant by the senior official responsible for taking the decision. As was pointed out by Phillips J in Cox v. Wildt Mellor Bromley Ltd [1978] IRLR 157 it is quite sufficient for an employer in a case such as this to call witnesses of reasonable seniority to explain the circumstances in which the dismissal of an employee came about and it was not necessary to dot every 'i' and to cross every 't' or to anticipate every possible complaint which might be made."
(3)Scrutiny in "marking" cases
"In fact it appears to us that what the employers did in this case was to set up a good system of selection, reasonably administered. It may very well have been possible to argue about the individual markings of individual employees, but that is a comment which applies as much to the marking of those who were not selected for redundancy as to that of those who were. If the view taken by the Industrial Tribunal were carried to its logical conclusion, there could be no alternative but to require the employer, in every such case, to produce all the evidence bearing upon all the assessments out of which the redundancy decision arose. That seems to us to go far further than is proper."
(4) Tribunal procedure
(a) Sample cases
(b) Pleading
(c) Discovery
"On an application under Rules 1, 2, 5 and 5A, the court if satisfied that the discovery .... 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 the discovery .... is not necessary either for disposing fairly of the action or matter or for the saving of costs."
".... we are of the opinion that the learned Chairman erred in failing to isolate the specimen cases and to identify the relevant issues in each case; and in failing to address his mind to the necessity for each limb of discovery at the present stage. We also take the view that the Order made was oppressive and if used as a precedent could exacerbate industrial relations and run counter to the fundamental basis of trust and confidence between an employer and each of his employees - not only those involved in the present litigation."
B. THE COURSE OF EVENTS IN THE PRESENT CASE
(1) Following a decision by the Government to cancel orders for fighter aircraft, British Aerospace were forced to carry out a redundancy exercise at their "Warton Unit" which comprises three factories at Warton, Preston and Salmesbury. The number of required redundancies was 530. For the purposes of selection for redundancy the workforce (7000 in all) was divided into 21 categories, which were not related exclusively to any one site. The number by which each category was to be reduced was agreed upon. Assessment forms were completed in respect of all employees. The relevant criteria were "Knowledge of work/relevant experience", "Achievement of work output", "Quality and accuracy of work", "Flexibility/Ability to do other work/jobs", "Ability to contribute to effective teamwork", and "Initiative". The possible ratings were "Below acceptable", "minimum acceptable", "Good" and "Outstanding" - carrying marks of 1, 3, 5 and 7 respectively. Extra weighting was to be given to the "Knowledge/experience" and the "Flexibility" criteria. There was provision for each assessment form to be first evaluated by one supervisor and then respectively checked and approved by two others. Every assessment form was marked "In strict confidence: this form must not be photocopied".
(2) The completed forms in respect of all employees were analysed individually, so that a points total was arrived at for each employee, and the results were then tabulated within the various categories. Individuals were thus placed in a ranked order - those with the lowest scores being selected for redundancy dismissal. Of the 530 so selected, 234 applied in due course to the Industrial Tribunal complaining of unfair dismissal. The majority gave grounds in their form ITI relying on lack of consultation and unfairness: a small minority relied on various forms of discrimination. Only 13 of the 21 categories were affected by these applications, involving a segment of the workforce numbering about 5000.
(3) An informal meeting convened by the Chairman on 25th September 1992 as a "Pre-hearing discussion" and attended by representatives of both sides, considered written proposals by the Trade Union representatives for the selection of sample cases and disclosure of documents. The disclosure sought, so far as relevant, was of:
"(c) documents relating to the selection criteria including the advice and training given to those making the selections.
(d) all documents relating to the selection of individuals including the assessment of those individuals selected and the assessment of all others in the same selection group."
(4) As a result of that meeting the Chairman wrote to the parties confirming the indication she had already given that in her opinion "items (c) and (d) would be necessary for the fair disposal of the proceedings". She also gave the following direction (to which no objection has been taken) in regard to lead cases:
"The applicants' representatives will propose which cases are to be heard as sample cases once the [employers'] documents have been produced and matters of inspection have been dealt with."
(5) The assessment criteria and the summary of overall rankings by category (with the applicants identified) were disclosed by the employers. They objected, however, to disclosure of the assessment forms of retained employees ("the retained assessments"). There was an attempt to deal with the matter by correspondence (copied to the tribunal), in which the employers objected to production of the retained assessments on the grounds both of confidentiality and of irrelevance.
(6) There was then a formal directions hearing at which the issue of discovery of the retained assessments was argued before the Chairman by representatives of two of the Unions concerned on the one side and the employers' solicitor on the other. For reasons already explained, there were no pleadings before the Chairman. She was dependent for a formulation of the prospective issues in the applications upon the oral submissions of the representatives before her. The nature of those submissions appears only briefly from the statement which the Chairman gave on 10th March 1993 for her confirmation of the original direction that the retained assessments must be disclosed. The relevant extract from those reasons reads as follows:
"6. I considered first whether disclosure of the assessment forms is necessary for the fair disposal of these proceedings. Mr. Robinson GMB.APEX and Mr. Ralph MSF argued that the forms were relevant and necessary because the redundancy selection procedure had been subjective, inconsistent and unfair; this would appear for a perusal of the forms. They further argued that as the employees had been graded, they had effectively been compared against each other, and in particular the assessor had compared them against an average employee- a composite of other employees. On the issue of confidentiality they referred me to Nasse v. Science Research Council [1979] ICR 921. They gave an undertaking that the documents would not be used for any purpose other than the Tribunal proceedings. In my opinion these forms have a prima facie prospect of relevance.
7. I then considered the claim of confidentiality and whether I should examine all the forms in order to decide if it was essential to disclose them in the interests of justice. In my opinion whereas the assessment forms may have had a high degree of confidentiality during the redundancy exercise, this degree is very much reduced since the exercise was completed: there is no longer any sense in which disclosure can interfere with management's conduct of this exercise. Furthermore perusal of the one sample form produced by the respondent does not disclose any comment or assessment that now appears to me to be confidential: the comments are not in my opinion intrinsically personal.
8. I consider that the totality of the assessment forms is certainly relevant and material. I have had regard to the decisions of higher courts in particular Science Research Council v. Nasse [1979] ICR 921 and British Railways Board v. Natarajan [1979] ICR 326 which relate to selection, albeit in sex and race discrimination cases. It is accepted that a comparison between the reports on people selected for favourable and unfavourable treatment is a proper test of the fairness of the application of a selection procedure and that such reports should, subject to considerations of oppressive volume, be disclosed. I have therefore considered the number of forms concerned and the number of applicants. The ratio of forms to applicants is in the region of 21 forms to one applicant - a ratio which cannot be said to be oppressive and burdensome.
9. I accordingly affirm the order for inspection of the Redundancy Selection Assessment Forms of those not selected for redundancy but who are in the same selection group as those who were. It should be complied with within 28 days of the date of this decision."
C. THE DECISION OF THE EMPLOYMENT APPEAL TRIBUNAL
"There is in the majority view a very significant difference in principle between the type of sex and race discrimination case such as those cited above and claims of unfair dismissal on grounds of selection for redundancy. This difference resides in the fact that in the typical race and sex discrimination cases there is involved a positive selection from a limited field of candidates who are often unknown to the applicant and discovery can often be perfectly effectively given of the other candidates' relevant documentation on an anonymous basis. Those features are not present in cases regarding selection for redundancy where those who escape redundancy are known and where discovery of their assessment forms cannot sensibly be effected on an anonymous basis. Moreover there is in principle in the majority view no valid ground for allowing what are called fishing expeditions by departing from the well established principle that the definition of issues should precede discovery."
D. THE ARGUMENTS ON THIS APPEAL
(1) The use of a marking system of the kind that was adopted in this case has become a well-recognised aid to any fair process of redundancy selection. By itself, of course, it does not render any selection automatically fair; every system has to be examined for its own inherent fairness, judging the criteria employed and the methods of marking in conjunction with any factors relevant to its fair application, including the degree of consultation which accompanied it. One thing, however, is clear: if such a system is to function effectively, its workings are not to be scrutinised officiously. The whole tenor of the authorities to which I have already referred is to show, in both England and Scotland, the courts and tribunals (with substantial contribution from the lay membership of the latter) moving towards a clear recognition that if a graded assessment system is to achieve its purpose it must not be subjected to an over-minute analysis. That applies both at the stage when the system is being actually applied, and also at any later stage when its operation is being called into question before an Industrial Tribunal. To allow otherwise would involve a serious risk that the system itself would lose the respect with which it is at present regarded on both sides of industry, and that tribunal hearings would become hopelessly protracted. There were therefore strong reasons of policy against allowing disclosure of the retained assessments at this stage, and no special circumstances justifying a departure from that policy.
(2) The latitude which the tribunal procedure allows to an applicant in regard to the informal expression (and the progressive raising) of issues requires that discovery against the employer should be directed sparingly; and if necessary on a graduated basis - tranche by tranche as particular documents become relevant to any issue as and when it is specifically raised. That gradualist approach is clearly contemplated, and may even have been intended to be encouraged, by the use in CCR O 14 R 8(1) of the phrase "necessary at that stage of the action". The Chairman was therefore required to direct her mind to the question "what discovery is necessary for disposing fairly of the application at the stage which it has reached at present, namely the selection of sample cases?" In answering it she was required to take account of the fact that the application of the system was not attacked in any specific respect, and that there was therefore at that stage no issue to which the retained assessments could be claimed to be relevant. To have forced their disclosure for the purposes of an exercise in comparison designed to provide individual applicants with grounds for specific allegations of anomaly or mistake in particular instances would have done nothing to ease the task in hand - which was limited to the selection of sample cases - and would have run a serious risk of subjecting these multiple applications to procedural chaos.
The appeal raised two further topics which can be mentioned shortly. One was confidentiality. On the view I take of this case - that the retained assessments were not in any event discoverable at the present stage of the proceedings on grounds of policy and relevance - that question does not arise. It is sufficient to say that issues of confidentiality always fall to be judged in the context in which they arise in accordance with the guidelines in Science Research Council v. Nasse [1980] AC 1028 at p 1065 et seq. The other was the principle (exemplified by Kumchyk v. Derby City Council [1978] ICR 1116) that in the interests of achieving finality as a major objective of the industrial tribunal system, a party will not in general be allowed to argue on appeal a point which was not argued below. It is accepted that the employers did not at any stage before the commencement of argument in the Employment Appeal Tribunal attempt to present the case as one in which it would be premature to be considering any further discovery before the sample cases had been selected. But I do not see that as raising any new point within the Kumchyk principle: the novelty seems to me to lie only in a change of emphasis related to what was all along a major issue in the case - namely that of relevance.
On an application for discovery, the applicant must demonstrate that discovery of the documents of which discovery is sought is necessary for disposing fairly of the action or matter or for the saving of costs: This is true generally of litigation in the County Court. It is equally true of unfair dismissal cases in the Industrial Tribunal: see Science Research Council v. Nasse [1980] AC 1028, 1089 per Lord Scarman. Unless a document is relevant to some issue in dispute, its disclosure and production cannot be necessary for the fair disposal of the case.
I too would dismiss the appeal.
1. One of the most serious criticisms of our system of civil litigation is its expense and the time that is taken to reach a decision. Expense and delay are themselves often due to excessive and unnecessary documentation. In considering applications for discovery, courts and tribunals should be vigilant to see that the rules relating to discovery of documents are not abused. Only those documents which are relevant and necessary for fairly disposing of the action or matter or for saving costs should be disclosed. Industrial Tribunals are intended to be a cheap, quick and effective means of resolving disputes within their jurisdiction. This purpose will be frustrated unless these restrictions on discovery are borne in mind. It is no answer to suggest, as Mr. Burke QC did, that orders for costs are not normally made in the Industrial Tribunal. The fact is that the costs are borne by the litigants; it is immaterial that the winner cannot recover them from the loser.
2. In the courts the question of relevance is determined by a consideration of the pleadings. In the Industrial Tribunal the pleadings, consisting of the Form ITI and the employer's answer, are often couched in general terms. No doubt it is desirable that there should be a degree of informality. But the disadvantage of this may be that the parties' real case does not emerge at that stage. Nevertheless, these documents must be the starting point for considering what are the issues in the case. There is nothing in the documents in the present case which in any way makes the assessment forms of the other employees who were not dismissed relevant. And it is quite wrong to order discovery on the basis that a case may in future be put in such a way that documents may become relevant. It was not until oral submissions were made to the Chairman that such a case began to emerge: (see the passage in paragraph 6 of the Chairman's decision) - though for my part I do not think this added much to the Form ITI. In my opinion, part of the trouble in this case was due to the fact that the applicant's case was never formulated in writing in such a way as could justify ordering discovery of these documents. If it is to be said that the case goes further than that set out in the Form ITI, or in a situation where there are numerous claims, that such cases go further, then in my view it is highly desirable that such a case should be formulated in writing with proper particularity, before consideration is given to an order for discovery.
3. In cases of mass redundancy in my opinion it will be only in rare and exceptional cases that the assessment forms of other employees not made redundant will be relevant. This is because the Tribunal is not considering whether those employees were unfairly not made redundant, but whether the applicant was unfairly dismissed. It is possible to envisage a case where for example all or the majority of employees in a certain category in one factory were made redundant, but all others, or the great majority, at the other sites were not. This might suggest that the criterion had not been fairly applied in their case. But this is something which will be known to the applicants or their union; and if that is the case, it can be presented with proper particularity. Then, and only then, may it be relevant to look at the assessments of others in a similar category at other sites; but it cannot possibly be relevant to look at all the other assessments of employees in different categories. The truth of the matter here, as the Employment Appeal Tribunal pointed out, is that this was a fishing expedition to see if any case could be discovered. That is what is not permitted.
(Appeal dismissed with costs)
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