United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 1080_93_3006

Appeal No. EAT/1080/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 30 June 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR R JACKSON

MR J C RAMSAY

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MR W SMITH          APPELLANT

RANK BRIMAR LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant DR STEPHEN J WATKINS

(REPRESENTATIVE)

191 Dialstone Lane

Stockport

Cheshire SK2 7LF

For the Respondents MR NICHOLAS CHRONIAS

(OF COUNSEL)

Engineering Employers Federation

Broadway House

Tothill Street

London SW1H 9NQ


 


MR JUSTICE MUMMERY: (PRESIDENT) This is an appeal by the Applicant in proceedings commenced by an Originating application presented to the Industrial Tribunal on the 3 June last year. The Applicant is Mr William Smith who, at the date when

he was dismissed from his employment, was an Assistant Production Control Manager with Rank Brimar Ltd, by whom he had been employed since the 16 April 1963.

In his complaint he alleged unfair dismissal by reason of Trade Union activity and alternatively unfair dismissal by reason of unfair selection for redundancy. He elaborated on the complaint in details which stated that the circumstances of the alleged redundancy were most unusual. Only one redundancy was declared. This followed very closely after another set of redundancies in which the Applicant was not made redundant, despite the fact that the circumstances cited by the employer applied at the time.

It is also alleged that the procedure by which the redundancy was declared was not the one usually followed by the Company. Around the time of the redundancy Mr Smith was closely questioned by senior managers of the Company about a case he was handling as a Trade Union representative. It is alleged that the Company refused to answer reasonable questions about reasons for declaring a further redundancy and selecting him.

Mr Smith's case was, therefore, that there was strong circumstantial evidence justifying the proposition, but, on the balance of probabilities, the reason for dismissal was to prevent him, in the exercise of Trade Union activities, from probing embarrassing discrepancies in the Company's treatment of different members of the staff during redundancy exercises.

The issues between Mr Smith and Rank Brimar Ltd became clearer when the Notice of Appearance dated the 6 July 1993 was filed. The Company disputed both ways in which Mr Smith put his claim. The Company's case was that he was dismissed because there was a diminution in the work carried out by him, and that he was informed as soon the Company realised that there was a need for redundancy. Using agreed criteria, which had been in use since, 1981 Mr Smith was identified as being potentially at risk.

As to the allegation that it was most unusual to have only one redundancy the Company gave particulars as follows in the IT3:

"Since 1989 until the applicants redundancy in March 1993 there have been 17 separate occasions when redundancies have occurred and of the 17 occasions there have been 6 occasions including March 1993 when there has been only one redundancy.

This has been well known to the applicants Trade Union and as a Union representative it was well known to the applicant.

The redundancy had nothing at all to do with the applicants alleged Trade Union activities."

The IT3 goes on to dispute a number of other points in Mr Smith's complaint.

After the filing of the IT3 there followed a number of skirmishes between the parties on interlocutory applications. It is Mr Smith's application for particulars which have led to this appeal. In the proceedings, Mr Smith is represented by Dr Watkins, a relation. He made the applications for particulars to the Tribunal. He has presented Mr Smith's appeal today.

There were two aspects of the appeal. I will first identify one that has now fallen away, since Dr Watkins has, on reflection, decided that it is not necessary to pursue the matter further. That point rose out of the Company's reply to a request for particulars the subject of an Order by the Tribunal on the 11 November 1993. The Tribunal ordered that the Company furnish to Dr Watkins particulars of the agreed criteria which had been in use since 1981, and are referred to in the Notice of Appearance.

The Company responded through their adviser, who is the Senior Industrial Relations Adviser with the Engineering Employers Association of South Lancashire Cheshire & North Wales, on the 24 November, in these terms:

"As per your order dated 11 November 1993, please find enclosed the agreed criteria which have been in use since 1981."

Attached to that are two typed pages which we have been informed by Mr Chronias, who appears this morning for the Company, represent the criteria that the Company have relied on since 1981.

Dr Watkins began to make submissions to us on the appeal that these documents did not appear to contain criteria at all, but merely set out a procedure for dealing with redundancy. He appreciated, after comments from the Tribunal, that this point that might be more effectively made at the full hearing before the Industrial Tribunal rather than on an interlocutory application when it is not appropriate to investigate the strength of the arguments on the merits of a claim, or of a defence.

There is no need to say any more on that point. The other point raised on the appeal is that the Industrial Tribunal erred in law in refusing to accede to Dr Watkins' request on behalf of Mr Smith for further and better particulars as to the names of individuals concerned in any redundancy upon which the Company intends to rely to establish its point about the frequency of single redundancies. In that connection the Company's advisers had in fact provided, in response to a request, details of dates and occasions on which they had been redundancies.

By letter of 11 August 1993 the Engineering Employers Association set out the 17 occasions of redundancy between 1989 and 1993, referred to the in the Notice of Appearance, identifying against each date the numbers of persons who had been made redundant on that occasion. There are six instances between the 13 October 1989 and the 12 March 1994 on which a single person was made redundant.

Dr Watkins was not satisfied with that information and therefore he made the request for names. He did that in a letter of the 7 December 1993. The decision which gave rise to the appeal was that notified to Dr Watkins in the letter written on behalf of the Chairman of the Industrial Tribunal on the 23 December 1993. The letter stated:

"I am writing further to your letter of 7 December 1993, ...

A Chairman of the Tribunals has refused your request for Further and Better Particulars as it relates to evidence and such orders are not usually granted. It seems that you already know in sufficient detail the nature of the case the respondent will be putting."

Dr Watkins was dissatisfied with that decision. He put in a Notice of Appeal on the 5 January 1994. In it he alleged, as grounds of appeal, perversity, errors of law and inconsistency of the Tribunal in refusing the Order.

In his argument Dr Watkins submitted that, correctly in our view, there was an issue of fact between the parties as to whether or not it was unusual for this Company to make a single person redundant. That issue is relevant to both ways in which Mr Smith's claim is put, namely, as to whether it was unfair selection for redundancy, or as to whether this was a case of dismissal for Trade Union activities. There is clearly an issue of fact relevant to those two complaints.

Dr Watkins' argument was that the names should be disclosed in the particulars because he needed to know those names, not for the purpose of making direct approaches to the people concerned, but for the purpose of knowing what the case was that the Company was putting forward. He does not want the names sprung upon him at the hearing because, without any forewarning of the names, it might then be necessary for him to seek an adjournment in order to deal with this fresh information.

He relied strongly in support of this point on the decision of the Court of Appeal in P & O European Ferries (Dover) Ltd v Byrne [1989] ICR 779, which overruled the decision of the Employment Appeal Tribunal and held that, in that particular case, the party, (in that case it was the employer), was entitled to have particulars which identified, by name, an employee. He relied on that case as authority for the proposition that it may be appropriate for a Tribunal to order disclosure of a name of an employee so that the other party can know how the case is put.

We do not find that authority particularly apt to this case, because it turns on the special features of the legislation which had given rise to the dispute in that case. That was a case of unfair dismissal of an employee while he was on strike. The employee claimed the dismissal was unfair. He alleged that there was another employee of the same employer who had been on strike, but had not been dismissed. He had to allege that in order to give the Tribunal jurisdiction. The provisions then in force, Section 62 of the Employment Protection (Consolidation) Act 1978, provided that, in a case where a person claimed to have dismissed by his employer where at the time of dismissal he was taking part in a strike or other industrial action, the Industrial Tribunal could not determine whether the dismissal was fair or unfair unless it was shown, as required by Section 62 (2)(a):

"that one or more relevant employees of the same employer have not been dismissed, ..."

An allegation was made that there was another employee who had not been dismissed although he was taking part in a strike. It was obviously crucial to the central issue in the case for the employer to know who the employee was saying had not been dismissed. We do not find that the judgments in the case lay down a general proposition that names should be disclosed in particulars. In fact, if the judgments lay down any general proposition, it is to the contrary.

Lord Justice May says at page 784(D):

"It is true that a party to litigation is not entitled to particulars solely for the purpose of ascertaining the names of his opponent's witnesses."

He goes on to say:

"But a party is entitled to particulars to enable him to know what case he has to meet, even though giving those particulars will identify one or more of the potential witnesses on behalf of the other party."

In Lord Justice May's view, which was shared by the other two Members of the Court, the request for particulars in that case was not solely for the purpose of obtaining the name and identity of the employee, although that would be the consequence of giving the particulars. The particulars were sought to enable the employer to know the case that it has to meet, in this sense to enable it to investigate the circumstances of the one employee whom it is alleged it did not dismiss at a time when it intended to dismiss all the employees who were on strike and who thus were relevant employees for the purpose of Section 62.

That is the decision in that case. In our view, it is not applicable to the circumstances of this case. Mr Smith knows what the case against him is: that is, that on six occasions, identified by date, it is alleged that the Company in fact made a single person redundant. It is not necessary, in order to know what the case is, for the Company to be required, by way of particulars, to provide the names of the individuals concerned.

We say that in this context. The stage will soon arrive in these proceedings for discovery to be given by each side. There is no application for discovery before the Tribunal on this point and therefore there has been no appeal. But it is only right that we express a view on the matters which have been discussed as background to the appeal on particulars. It appears to us that the Company will be required to give discovery of documents which relate to the six occasions identified in its particulars as being occasions on which they made a single person redundant. They cannot dispute the relevance of the documents, since they go to the central issue in the case, whether or not it was unusual to have these redundancies.

Mr Chronias, who appeared on behalf of the Company, made the point that it was not appropriate for this Tribunal to deal with any points of discovery. They were matters for the Industrial Tribunal. He was particularly concerned that there were questions of confidentiality which would arise, not only in relation to the particulars requested but also in relation to discovery of documents. The Company may well wish to take the position, on which he had no instructions at present, that they would wish to keep confidential the names and perhaps other personal details.

We agree with Mr Chronias that we cannot deal with that point. If there is an issue about confidentiality only the Industrial Tribunal can resolve that by balancing on the one hand, the requirements of confidentiality with, on the other hand, the need for any Tribunal faced with the conflict of fact to have before it as much of the factual and documentary evidence as is available.

All we propose to say is that, although we express no view on the confidentiality question, it does seem to us that the documents relating to these six occasions should be provided on discovery. If they are available and provided on discovery, they will give Dr Watkins, in his handling of the case for Mr Smith, a great deal more information than he would get by this misconceived attempt to obtain names of individuals by an application for particulars.

We have reached the conclusion that the decision of the Industrial Tribunal contained in the letter of the 23 December 1993 was not in error of law, and was not perverse. It shows a correct approach to the matters that were sought on the request for further and better particulars. We shall therefore dismiss this appeal.

A number of detailed points were made by Mr Chronias in a helpful outline argument submitted to the Tribunal. We express particular agreement with the propositions which he derives from the cases that, in appeals on interlocutory matters, such as this, the Employment Appeal Tribunal can only interfere with the discretion of the Industrial Tribunal if there is a misdirection in law, or if the Tribunal have reached a perverse conclusion.

It cannot be emphasised too strongly that this Tribunal does not have any general jurisdiction to review the exercise of discretionary powers by a Tribunal and there are good reasons why it should not have such a jurisdiction or assume one. This case illustrates clearly the time and expense thrown away by pursuing interlocutory applications which are not necessary for the preparation of the case and in which there is a real risk of half formed arguments about the merits, half formed because the process of preparation is still incomplete. The merits of the case are argued at the full hearing in the context of all the oral and documentary evidence. It is not possible in most cases to advance meaningful arguments on the merits at an interlocutory stage.

With those comments we dismiss the appeal.