England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL

		Royal Courts of Justice Strand London WC2 Friday, 20th July 2001

1. LORD JUSTICE MUMMERY: This is an application for permission toappeal. The application is made by Mr Petrides in person. The decision which he wishes to appeal is that of the Employment Appeal Tribunal, in which the judgment on behalf of the tribunal was given by Sir Christopher Bellamy QC on 9th May 2001.
2. By its order the EAT dismissed Mr Petrides' appeal against an interlocutory decision of the Bedford Employment Tribunal on 22nd March 2001. That decision was made by the chairman alone, Mrs Tribe. At that tribunal Mr Petrides appeared in person. An interlocutory order was made on a hearing for directions. I have been informed by Mr Petrides this morning that the substantive hearing of his claim for unfair dismissal has been fixed for three days on 28th, 29th and 30th August. The interlocutory order was solely concerned with the preparations for the hearing in relation to a dispute between Mr Petrides and the respondent employer, Direct Line Group Services Ltd, about whether certain witnesses should be compelled to attend to give evidence and whether certain documents should be provided. The order made by Mrs Tribe was that the employer should provide a fresh list of salaries of those employees employed by the employer working in the same department as Mr Petrides as at the effective date of the termination of his employment. It was also directed that the employer should supply to Mr Petrides - in addition to the telephone statistics for the salvage department in which had worked, already supplied in February 1999 - a list of the average time of calls made in February 1999, if the same exists. Thirdly, the employer's representative undertook to pass on details of a computer code for the movement screen to see if that would enable identification to take place of the screen in question and to provide Mr Petrides with a copy, if the same could be traced.
3. Mr Petrides' appeal to the Employment Appeal Tribunal was on thebasis that the directions which were given did not include directions which he had requested for the attendance of ten witnesses and for the disclosure of further documents. I have already explained to Mr Petrides the limited nature of the jurisdiction on appeal from the Employment Tribunal. The Employment Appeal Tribunal can only hear an appeal on a point of law. The Court of Appeal can only hear an appeal, if it is satisfied that there is a point of law and that the proposed appellant has a real prospect of succeeding. I have also pointed out to Mr Petrides that what he is seeking to appeal against is the exercise of a wide discretion given to the tribunal in relation to interlocutory orders preparing for the hearing of the substantive case.
4. Mr Petrides' application invokes the power of the tribunal under Regulation 4 of the Employment Tribunal's Regulations 1993. Under that regulation the tribunal "may" - that means it has a discretion - on the application of a party require the furnishing of particulars or the attendance of a witness or the disclosure of documents. In general, the person best placed to exercise that discretion, knowing what the issues are, is the tribunal itself. But, of course, tribunals can make errors of law. The purpose of the appeal jurisdiction is to correct them.
5. In order to see whether there is a real prospect of succeeding on a point of law in this case, I must say something about the background to this dispute. Mr Petrides was employed from January 1995 until 10th November 1999 as a salvage clerk in the salvage department of a company called Direct Line Group Services Ltd. He claims that he was badly treated by six officers of Direct Line over a period of 16 months prior to his dismissal. The details of the treatment are set out in the IT1 which Mr Petrides presented to the tribunal on 8th February 2000. In that he referred to the employers causing him stress, running an understaffed department, bullying, intimidating and harassing him through the supervisor and manager over a period of two years, downgrading him, falsely accusing him of poor performance, isolating him from his colleagues, falsely accusing him of being aggressive and making errors, refusing to acknowledge the quality of his work, ignoring complaints he made to the personnel department, being paid a lower salary than other colleagues engaged in the same work and generally causing him stress by repeatedly referring to his performance, without evidence criticising it without evidence, and ignoring evidence that he had supplied to the employers.
6. Mr Petrides summarised the matter to the court in his submission this morning by saying that Direct Line had treated him "like a slave", had failed to perform their responsibilities and had discriminated against him. He gave a specific example of their conduct by saying that when a colleague tried to help him that colleague was threatened.
7. Direct Line Services Ltd deny the allegations. Their case is that the reason why Mr Petrides was dismissed on notice in November 1999 was that there was a breakdown of trust and confidence in their relationship. they complained in their notice of appearance that the details of Mr Petrides' complaints were too vague and general to respond to. They requested further details to enable them to contest his claim.
8. Originally, the proceedings were in London South. Due to a potential conflict of interest they were transferred to the tribunal out of London - in Bedford - on 28th November 2000. I mention that because, before the transfer was made, Mr Petrides had made an application to the tribunal in London. That was heard by the chairman there, Mrs Silverman. The application was in relation to the discovery of documents and the exchange of witness statements. Some orders were made, but not all the orders that Mr Petrides was seeking.
9. After the case was transferred to Bedford Mr Petrides sought to make a similar application, even though he had not appealed against the refusal of the earlier order by Mrs Silverman. He applied for what were described by the tribunal as "wide ranging, extensive and oppressive orders". I refer to paragraph 6 of the extended reasons which the Employment Tribunal gave for their decision. The Bedford tribunal found some of the documents which he sought to be supplied. They found that others, which no longer existed, could be the subject of an order. The list of files which Mr Petrides set out in his application letter of 11th March 2000 was held by the tribunal not to be essential for the just disposal of the case. As regards the witnesses, numbering ten in all, the tribunal found that Mr Petrides was unable to explain what the relevance of their evidence was to his case and that he really wished them to be there so he could cross-examine them. Mrs Tribe, the chairman, refused to compel the witnesses to give evidence, saying that other witnesses attending the hearing would be able to give direct evidence on the same matters. I will come to the reason why Mr Petrides disputes that.
10. Having failed to obtain the orders he had requested, Mr Petrides then appealed to the Employment Appeal Tribunal. The Employment Appeal Tribunal decided that there was no error of law in the decision of the Employment Tribunal refusing the wide ranging disclosure. They suggested, however, that the employer should consider supplying Mr Petrides with the documents requested, as the limited number of documents did not appear to be oppressive and might be appropriate in the interests of fairness. The appeal tribunal refused to allow the appeal, saying that they had carefully examined the extended reasons given by the chairman for refusing the orders for which Mr Petrides had asked and said:

"We can find no error of law in the approach adopted by the learned chairman. The result is that for the reasons we have given this appeal is dismissed."

11. On the application today Mr Petrides has helpfully read out a prepared statement submitting that these orders are required by him and that both the Employment Tribunal and the Appeal Tribunal made errors of law in refusing to order what he had asked. He first drew the attention of the court to the Convention on Human Rights, Article 6, the right to a fair trial, which provides that, in the determination of his civil rights obligations, everyone is entitled to a fair hearing.
12. Mr Petrides' case is that his claim to the Employment Tribunal will determine his civil rights, that is his employment rights, and that it is necessary for a fair hearing that he has these documents and witnesses. He named the witnesses he wishes to attend. They include six officers of the company, in addition to the two officers of the company that Direct Line Services are proposing to call togive evidence: Vanessa Rees, the senior personal officer, and Carol Swetenham, the personnel director. He said he had sent questions to four of his colleagues, who did not answer them. He would wish for an order requiring them to come and give evidence. He says that he needs these witnesses in order to support his claim of unfair dismissal and to refute the contention of Direct Line Services that the reason for his dismissal was the justifiable one of breakdown of trust and confidence. He said repeatedly that he was not intending, apart from requiring the attendance of these witnesses, to call any other witnesses. He was relying on his own evidence and what he claimed to be the incontrovertible evidence recording what had been said at a number of meetings. He says that there were six transcribed meeetings. These would be the proof of his case, in particular in relation to the allegations against him relating to poor performance. It is also in relation to the allegations of poor performance that he wishes to have the further documents. He says no comparative statistics are available. He wants more telephone statistics. He also wants documents relating to his allegation that he was performing below average. He says that he was performing above average, but being paid a below average salary. He also explained, as an aid to understanding the context of these applications, what was involved in his job as a salvage clerk.
13. Finally, Mr Petrides complained about the way in which Direct Line Group Services had been having the matter delayed, because of adjournments for which they had asked. On that point I really do not think Mr Petrides has a just cause for complaint. It was inevitable that his appeals against the refusal to make the witness orders and the document orders would have the effect of delaying the substantive hearing. There would be no point in proceeding with the hearing before a final decision was reached on whether he should be able to compel the attendance of these witnesses and the supply of the documents.
14. Having considered all of Mr Petrides arguments, I return to the point I made at the outset that the Employment Appeal Tribunal has a wide discretion in relation to case management orders, such as what oral evidence should be given and what documents should be produced. The role of the appeal court is to review the decisions and only to intervene where an error of law has been made. Mr Petrides would have to satisfy me, before this court could interfere, that the chairman, both at London South and at Bedford, had misconstrued the scope of their powers under Regulation 4 of the 1993 Regulations or had exercised the discretion which those regulations confer in a way that was perverse, that is, they had reached a decision which was plainly wrong and one at which no reasonable tribunal, properly understanding its powers and understanding the issues in the case, could have arrived.
15. In my view, the chairman of the tribunal was entitled to reach the conclusion that the orders which Mr Petrides were seeking were too wide and far ranging.
16. It is important in cases that come before the Employment Tribunals that the oral and documentary evidence is confined to what is relevant to the issues. The powers which are given under
17. Regulation 4 should not be exercised in a way which may create unnecessary amounts of documents and evidence, adding to the expense of the parties and the length of the hearing unnecessarily.
18. In my view, the Employment Tribunal chairman was entitled to conclude, as stated in paragraph 6 of the extended reasons, that the discovery sought by Mr Petrides was not essential to the just disposal of the case and therefore should not be the subject of an order.
19. I am also of the view that there was no error of law in the conclusion of the chairman of the tribunal in paragraph 7 of the extended reasons that the relevance of the evidence of those witnesses had not been made out. The witnesses would not come voluntarily, so Mr Petrides would not know what they were going to say. It would simply be a matter of securing their attendance at the hearing for the purposes of cross-examining them. That, the chairman was satisfied, would cause disruption to the respondent employer and that was not the purpose for conferring the power of making witness orders. I understand why Mr Petrides considers that these witnesses should be there, but he has not satisfied me that their presence is essential in the interests of justly disposing of the case, nor are the additional documents. The court has ordered those documents to which he has established a reasonable requirement. He is not entitled to the additional documents which he has mentioned or to compel the attendance of witnesses.
20. For those reasons I do not think that this appeal has a real prospect of success. The case should proceed in the hearing at the Employment Tribunal at the end of next month. I would, accordingly, refuse permission to appeal. I am sorry Mr Petrides. I know you will be disappointed, but that is my judgment in your case.
Order: Application refused