England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2 Tuesday, 24th April 2001

Tuesday, 24th April 2001

1. LORD JUSTICE MUMMERY: This is an application for permission to appeal. The application is made by Dr Uruakpa. Her husband has made submissions on her behalf both in the written materials and in person today. The application is for permission to appeal against the decision of the Employment Appeal Tribunal given on 7th February of this year by Mr Commissioner Howell, QC, on behalf of the Appeal Tribunal.
2. The Appeal Tribunal dismissed an appeal by Dr Uruakpa against the refusal of the Employment Tribunal to order the provision of further particulars, documents and information by the respondent, Meat Hygiene Service, in connection with the claim against them for race discrimination.
3. The claim arises out of an application that Dr Uruakpa made for the post of Official Veterinary Surgeon with the Service. The Service was established in April 1995 as an Executive Agency of the Food Standards Agency.
4. Doctor Uruakpa, a British citizen of Nigerian origin, has veterinary qualifications both in Nigeria and in Queensland, Australia. Following her application for the post she was interviewed and then received a letter which has given rise to the complaint of race discrimination.
5. The letter from the personnel manager of the Meat Hygiene Service is dated 11th February 2000. It is headed "Application for Official Veterinary Surgeon Position", and reads as follows:

"I refer to your recent interview in London, for the position of Official Veterinary Surgeon in the Meat Hygiene Service.

It is with regret that I have to inform you that you have been unsuccessful in your application.

I would advise you that only those candidates who were considered by the interview panel to have a very good level of spoken English in addition to the relevant practical experience, were considered suitable for appointment at this time.

Whilst you have not been selected on this occasion, I hope that this decision will not deter you from applying for any similar positions in Great Britain which you may see advertised in future.

Thank you again for your interest in working for the Meat Hygiene Service. Please accept my best wishes."

6. Following receipt of that letter Dr Uruakpa began proceedings in the Employment Tribunal on 5th May 2000. The claim was for race discrimination and in box 11, which is provided for details of the complaint, this is said:

"I am a British Citizen of Nigerian ethnic origin.

I hold the degrees of Doctor of Veterinary Medicine awarded by the Ahmadu Bello University, Nigeria, and the Master of Veterinary Science Degree awarded by the University of Queensland, Australia.

The Meat Hygiene Service has refused to employ me as an Official Veterinary Surgeon on the grounds of not possessing a very good level of spoken English.

I believe that I have been racially discriminated against."

7. The claim is resisted by the Meat Hygiene Service. The case was originally fixed to be heard at the end of February but has been adjourned until October by reason of the interlocutory orders which have given rise to this appeal. An order for particulars was requested on 23rd July 2000, and replies were sent by the Meat Hygiene Service, the relevant reply being dated 19th October 2000. In the replies information was provided about the requests which were asked of the candidates who attended the relevant interviews held between 19th and 21st January 2000. A list of questions were set out, as used by the interview panel for consistency of approach. Information was also provided about the assessment of the basis of responses to questions, discussions at the interview and the assessment relating to the level of spoken English of the candidates. Various other items of information were provided.
8. This appeal is about what was not provided. A request was made by Dr Uruakpa for the names and professional addresses of the candidates who were successful at the interview. In answer to that the Meat Hygiene Service said this:

"Details of the names and professional addresses of those candidates who were successful at interview are considered by the MHS to be confidential."

9. They were therefore not provided.
10. On 28th November 2000 the Employment Tribunal refused to make an order against the Meat Hygiene Service for more particulars. What was said in the letter of 28th November was this:

"Dear Mrs Uruakpa

Thank you for your letters dated 20 and 30 October and 20 November 2000 the contents of which are noted.

I enclose a copy of a letter dated 19 October 2000 and enclosures that have from the respondents in this matter.

A chairman, Mr J Parkin, has instructed me to say he considers the respondents have fully complied with the Order of the Tribunal."

11. Dr Uruakpa then appealed to the Employment Appeal Tribunal in relation to that letter and a further letter of 15th December 2000 by which the Employment Tribunal refused a request for further discovery.
12. These matters were heard by the Employment Appeal Tribunal on 7th February and the appeal was dismissed. It was made clear at the beginning of the judgment of Mr Commissioner Howell that the appeal was against two decisions of the Chairman relating to the refusal to order further particulars and discovery. He said in paragraph 3 of the judgment that there was no dispute that the relevant details of the successful candidates, other than their names and addresses, have already been supplied, along with records and notes of the questions asked and answers given, not only by the successful but also the unsuccessful candidates at the interviews in which Dr Uruakpa took part.
13. Dr Uruakpa's case before the Appeal Tribunal and on this application today is that the Chairman of the Employment Tribunal was wrong not to order further particulars, in particular the names and addresses of successful candidates and details of a wide range of particulars of instances in her letter to the Employment Tribunal.
14. The point of being given the names and addresses of the successful candidates, as Mr Uruakpa explained to me, is that this will enable Dr Uruakpa to bring as witnesses before the tribunal the individuals who were successful, and to demonstrate to the tribunal that the question of her language skills in relation to those who were successful was not the true reason for the failure of her application at the interview. Their giving evidence (and I am told by Mr Uruakpa that the successful candidates included a Spanish candidate and a Chinese candidate) will enable Dr Uruakpa to demonstrate to the tribunal that her language skills are better, if not equal to, those candidates who were successful. At paragraph 14 of the EAT judgment this is stated:

"The real issue on both of these applications for Particulars and Discovery is whether the Applicant was entitled to have disclosure of the names of those candidates who had been successful in the interview process, when she was turned down. Those individual names and addresses of the candidates involved have not been supplied by the Respondents on the ground that they are irrelevant to the discrimination issues properly before the Tribunal in this case and are also confidential, so that the Respondents consider they should not be disclosed and should not be ordered to be disclosed."

15. The Appeal Tribunal then referred to authorities, in particular the case of Nasse v Science Research Council [1979] IRLR 465, and to the decision of the Employment Appeal Tribunal in Oxford v Department of Health and Social Security [1977] IRLR 225, that being a case in which the Employment Appeal Tribunal upheld a refusal to order the disclosure of names and addresses of individual successful applicants.
16. The conclusion of the Appeal Tribunal was that these additional particular disclosures requested by Dr Uruakpa are not in fact necessary for a fair and just determination of the issues raised by her in her complaint. They considered that it was right for the Chairman to reject the request of what is called "a fishing expedition". They were not satisfied that it was essential to her case to have the three successful candidates giving evidence to the tribunal in order to demonstrate the point which was sought to be made in respect of alleged language deficiencies on her part and to show that language skills did not in fact form part of the decision against her, or that it would assist her to establish the allegation that she was discriminated on the ground of race.
17. The tribunal took the view that this matter could be properly and fairly dealt with on the existing material, in particular the interview notes of all the candidates which should indicate any particular language difficulties which were recorded at the time of the interviews. The tribunal concluded that the Employment Tribunal hearing this case would be able to draw whatever inferences are proper on the totality of the evidence and such evidence was not insufficient to enable proper inferences to be drawn one way or the other without names of the individual successful candidates.
18. On the hearing today Mr Uruakpa challenged the reasoning of the Employment Appeal Tribunal. He says that before deciding to uphold the decision of the Employment Tribunal the Appeal Tribunal should have inspected the documents to see if they were in fact necessary for the fair disposal of the case. He said that the names and addresses of the successful candidates were necessary in order to enable his wife to call these applicants as witnesses, and that they were public servants who should be accessible to her as witnesses. He drew my attention to the Human Rights Act 1998 and to Article 6 of the Convention, which contains the right to a fair hearing, and submitted that his wife needs access to these witnesses in order for the hearing of her complaint to be fair. He emphasised that those names that were being sought were those of public servants and they should not be withheld in the way that the Employment Tribunal has allowed the Meat Hygiene Agency to withhold them. He challenged the assertion that the names and addresses were confidential.
19. I found the submissions that were made helpful. In deciding whether to accept them I have to ask this question: does this appeal have a real prospect of success? That is the test which I am required to apply. I also have to bear in mind that what is sought to be appealed here is the exercise of a discretion by the Employment Tribunal. The Employment Tribunal has a discretion under Regulation 4 of the Employment Tribunal Regulations 1993 to require a party to furnish further particulars which are requested and may require one party to grant to the other such discovery and information of documents as may be granted by the county court. It is clear from those provisions, as well as from the general provisions in Regulation 13 which enable an Employment Tribunal to regulate its own procedure, that the case management discretions in connection with claims brought in a tribunal are a matter for the Employment Tribunal. The Appeal Tribunal and this court ought only to interfere with those decisions if it is satisfied that the decision is plainly wrong, erroneous in principle, or has taken account of irrelevant matters or failed to take account of relevant matters.
20. In this case I have reached the conclusion that this appeal has no real prospect of success. It is in my view highly unlikely that the full court would interfere with the exercise of discretion by a tribunal, which has already made orders for extensive provision of information relating to the interviews. In my experience of these matters it is not in general permissible for an applicant for discovery or further particulars to seek to obtain the names and addresses of the successful candidates at an interview. It has been found that it is not normally necessary for that information to be provided. It is regarded as confidential information. The normal way that these matters are dealt with is that the successful candidates (or indeed the unsuccessful candidates) are identified by letters of the alphabet. This protects their anonymity and it does not impair the ability of a complainant to establish race discrimination by reference to the questions that were asked at the interview and interviewers' notes of the replies which are given to those questions.
21. It is of course open to Dr Uruakpa on the substantive hearing of this case in October to ask searching questions of the witnesses brought on behalf of the Meat Hygiene Service in order to explain to the tribunal why they wrote the letter of rejection in the terms that they did on 11th February 2000; and, as has been pointed out by the Appeal Tribunal and has recently been explained by the House of Lords in a number of decisions, cases of race discrimination are capable of being proved adequately by inferences that may be drawn from what information has been available and from the questions which are asked relevant to the explanation for the less favourable treatment that Dr Uruakpa received in this case when her application for this position was rejected.
22. For the same reasons as were given by the Appeal Tribunal I do not think that this appeal will succeed. It would serve no useful purpose and might even result in Dr Uruakpa becoming liable to pay costs, which would have been incurred unnecessarily by fighting an appeal that had no real prospect of succeeding.
23. I would refuse permission to appeal and I will make an order that the transcript of the judgment I have given is provided at public expense.
(Application refused; no order for costs; transcript of judgment to be provided to the applicant at public expense).