United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 351_94_2306

Appeal No. EAT/351/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 23 June 1994

HIS HONOUR JUDGE J HULL QC

MISS J W COLLERSON

MR S M SPRINGER MBE

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MR L G VICKERSTAFF          APPELLANT

EDBRO PLC          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant THE APPELLANT IN PERSON

For the Respondents MRS F MILLER

(SOLICITOR)

Elliott & Co

Centurion House

Deansgate

Manchester M3 3WT


 


JUDGE HULL QC: Mr Vickerstaff appeals to this Tribunal from an order made on the 17 March 1994 by a Chairman of Tribunals, refusing him an order for discovery. I must underline the fact that this is a case which has yet to be tried. We do not know what evidence is going to be adduced. We do not know what documents are going to be placed before the Tribunal and certainly we do not know what evidence is going to be accepted and what the final result of the Industrial Tribunal's deliberations are likely to be.

What has happened in outline is this, and I shall mention it only in outline because we certainly do not want to say anything which might prejudice a fair trial or, indeed, make any of the parties feel that their position has been prejudiced. What happened was this. Mr Vickerstaff was employed by the Respondents, Edbro. They manufacture and supply hydraulic equipment. Mr Vickerstaff was engaged for the latter part of his employment as Export Documentation Manager, amongst apparently other duties. He began his employment in February 1986.

Apparently, not all was happy in the firm, I do not need to go into details. Some redundancies were planned. There came a time in November 1993 when there was an interview between him and his employers in which he made allegations of corrupt and unlawful practices in the firm and declined to condescend to particulars.

The employers, through their representatives, tried to obtain exact particulars but failed to do so and Mr Vickerstaff was dismissed, for what is described as gross misconduct. He, on the 15 December, complained to the Industrial Tribunal that he had been unfairly dismissed. His complaint starts at page 11 of our bundle and he says in that complaint that his employment was ended on the 11 November when he was unfairly dismissed. He says:

"On 8 November 1993 I wrote a `Private & Confidential' memo to the Finance Director, stating that if I left Edbro on acrimonious terms, I would reveal the illegal activities I was expected to perform, and others I was aware of."

He went on to say that the Finance Director was aware of those matters.

The Respondents, in due course, put in an answer. There is some doubt and difficulty as to when it was received. There certainly seems to have been some muddle in the office of Tribunals where this was dealt with, which leads Mr Vickerstaff to say that "they are obviously colluding with the Respondents", or in the alternative he says are grossly incompetent.

On the 2 March 1994 (page 3) Mr Vickerstaff applied for an Order of Discovery. He wrote on the 31 January 1994 a letter (at page 2) asking for certain documents and at page 3 he wrote to the Regional Office of Industrial Tribunals saying that he would like an order for production of those documents.

On the 17 March a letter was written which is at page 6 of our papers, and there one can see that the Regional Office wrote:

"A Chairman is not prepared to grant the order requested by you. He considers that the order is unnecessary to fairly dispose of the proceedings or to save costs."

and it is from that direction that Mr Vickerstaff appeals to us.

He has invited us to look at various papers and we have done so. I should say, first of all, the way in which he puts his case is to say: "I seek possession of documents which are the only absolute proof that when the Respondents dismissed me, they knew about all the allegations I was making. Without them my chances of winning the Industrial Tribunal hearing will be seriously undermined." That is the way in which he has put it to us shortly.

Among the documents at which we have been asked to look is a document which is in a bundle exhibited to an affidavit of John Frederick Worton-Griffiths sworn on the 16 June 1994. Mr Worton-Griffiths is the Chief Executive of the Respondents. In that bundle, which is referred to as "JFWG1" there is the letter of 8 November 1993 which Mr Vickerstaff wrote to the Company threatening them:

"When my employment with Edbro eventually ends, if the parting is acrimonious (as seems highly likely, in view of the current executive's ...." [and then he makes a remark about them] "I will certainly be notifying the appropriate National and International authorities of all Edbro's illegal and irregular activities."

He then gives particulars of what he says he is going to disclose. Also in the bundle is a record, what purports to be a transcript of the interview on the 11 November which led to his dismissal on that day. He was asked to produce material and (page 23) he said he would not provide to his employers specific material that he had got. On the next page, page 24, he said he was not prepared to tell what documents he had got. At page 26, near the end of the conversation, he said:

"No, I will give you generalisations but I won't give you specifics."

So he was making these serious allegations but saying that he would not give details and specifics and so on.

He left the Company and on the 14 November he wrote a letter to Mr Matthews, the Finance Director of the Company, and among many things in that letter which we have read he said that he would not be complying with a request to return documents:

"I will ignore any injunction they may obtain ...."

Saying in terms, therefore, that any order made by the Court in favour of the employers would be ignored. He went on to say that he had made copies of material, he refers to the Fraud Squad, the Director of Public Prosecution and he says:

"As you must now realise, I am a squirrel when it comes to hoarding useful information."

and he gives detailed statements as to how these documents will be disclosed unless he himself telephones, so in other words, he is saying "this will happen automatically, whatever happens to me". He refers to a claim for £200,000 against his employers. He talks about conspiracy and many illegal activities and he says, referring to his claim for £200,000:

"If however, you wish to consider meeting my claim, in full, by way of an out of court settlement, I am prepared to give a written undertaking that in consideration of this settlement, and no further legal action being instituted by either party, I will not divulge any information which has come into my possession during my employment with Edbro. I will also undertake to destroy all the material in my possession as soon as I am certain no further action will evolve."

The £200,000 is apparently arrived at by multiplying his salary by the number of years that are still to run until Mr Vickerstaff's pension age. There is a later letter dated 18 November in which he says he will send a letter to the local newspapers and will be seeking maximum publicity, that is at pages 29 and 30.

When one looks at the Notice of Appearance by the Respondents, they say that he was dismissed because he raised these matters of illegality with the Company and he failed, in spite of being asked to do so, to give particulars which would enable the Company to look into the matter.

When one goes back to the bundle, which as I say we have been asked to look at, one sees that indeed the High Court did order that Mr Vickerstaff (Defendant to an action by Edbro) should return all papers, and should respect confidences which had been placed in him during his employment. That order was made on the 19 November 1993 by Judge Kershaw Q.C., sitting as a Judge of the High Court in Chambers at Manchester. It was ordered that the Defendant do deliver up or cause to be delivered up forthwith to the Plaintiff all originals and copies of documents, and so on, which came into his possession in the course of his employment with the Plaintiff and which remain within his custody possession or power, together with any copies of any such documents and he is to be restrained until trial from using to the detriment of the Plaintiff any confidential information relating to the Plaintiff, and there are other provisions, intended of course to preserve the position.

Mr Vickerstaff has told us that the learned Judge declined to allow him to cross-examine witnesses, that I am afraid shows Mr Vickerstaff is not acquainted (one would not expect him to be) with the practice in interlocutory applications designed to safeguard the position of the parties. The Court does not in those proceedings decide the truth, or otherwise, of allegations which are made but acts in a way which is intended to preserve the proper interests of the parties, pending the litigation which is to ensue.

True to what he had threatened, Mr Vickerstaff did not obey the order of the High Court, which was served on him with the usual warning that he must obey it or risk imprisonment. In due course, being proven still defiant, and this is at page 42, on the 30 November he was committed to prison for 14 days. Apparently, since his position continues to be the same and his contempt of the order appears to be the same, the same thing may happen with a much longer term in the near future. But that is not, of course, a matter for us.

I have already mentioned the nature of these proceedings. Mr Vickerstaff's dismissal is admitted and it is for the Respondents to establish the grounds on which they say he was dismissed, and that those are grounds falling within Section 57 of the Act. If they succeed in doing that, and only if they succeed in doing that, the Tribunal will have to consider the question whether the employers acted reasonably, or unreasonably, in treating those as grounds for dismissing Mr Vickerstaff.

With those matters in mind we turn to consider the order which was made by the learned Chairman, which is the subject of the appeal to us. The first thing to notice is that Industrial Tribunals are supposed to proceed in a summary way. They are meant to proceed informally and they are intended to get to the truth of the matter as quickly and informally as they can, and to ignore anything which might delay them unnecessarily. Discovery is a potent source of delay and therefore it is always, even in the most formal Courts, a matter of discretion.

Here, the Tribunal had a complete discretion. Under Rule 4 sub-Rule 1 of the Rules which now apply to Industrial Tribunals:

"A tribunal may-

on the application of a party to the proceedings made either by notice to the Secretary of the Tribunals or at the hearing of the originating application, or, of its own motion, require one party to grant to another such discovery or inspection (including the taking of copies) of documents as might be granted by a county court."

It is the discretion of the Tribunal, and not our discretion, which counts; we are entitled to interfere with the exercise of the Tribunal's discretion only if we are satisfied that the Chairman has exercised it on a false basis in law, or without any grounds whatever, or in some other way wrongly. We would then, in our discretion, be entitled to interfere, but it is very rare for this Tribunal to interfere with an interlocutory order pending the trial of the application to the Industrial Tribunal.

The reason is, or should be, perfectly obvious. It is the Industrial Tribunal's responsibility to try the case fairly and properly and to say how it will set about that task, including making orders for discovery, or further particulars, or whatever other formalities need to be attended to, such as bundles of documents and so forth. Another reason is this, which may not be so generally known among laymen, that no such interlocutory order is ever final. If it is made clear to the Tribunal in due course, when perhaps a bundle has been prepared, or when the hearing is taking place, that in fact it is necessary to see a document, or documents, which have not been produced, then the Tribunal has power to deal with the matter then. Indeed if, at some intermediate stage, material becomes available which shows that an order for discovery should be made then the Tribunal can make such an order.

It is on the face of it entirely pointless to come here when the obvious alternative of making a further application to the Tribunal, if it seems advisable, is available to the party who has failed to get what he wants from the Tribunal.

It appears to us, therefore, that what has happened here is that the Chairman has exercised his discretion on the very limited material which is at present available to that Tribunal without hearing argument and without looking at any circumstantial account of why he should exercise his discretion in one way or another and has been obliged to form his view on such material as he has; that is to say what Mr Vickerstaff was able to lay before him. On that material, the Chairman formed the view that an order for discovery was not necessary for the fair disposal of the action.

It really is not necessary to say any more than this. But we would add that much of what has been put before us today amply reinforces the view that it would be wholly out of place to order discovery at this stage in this matter. First of all, it is very difficult to see how the issue which is involved in this case, namely, the proof by the employers, to the satisfaction of the Tribunal, that they dismissed Mr Vickerstaff because he refused to comply with their reasonable requirements to produce documents, and give substance to the allegations that he was making, can be furthered by discovery of particular documents. The fact is that they will have to say what happened at this meeting and produce the transcript and it appears to us, having seen what purports to be the transcript, that that would be the subject-matter, perhaps the principal subject-matter, of the enquiry which the Industrial Tribunal will in due course have to make if these proceedings go on.

But there are other grounds too which have impressed us as showing that the order made is entirely appropriate. In every order for discovery it is implicit that the documents which are listed on discovery, which will be copied, if requested, will be used solely for the purpose of the litigation in which the order is made and will otherwise be confidential.

As I have said, Mr Vickerstaff has declared that he proposes to use such documents and information as he has for all sorts of purposes including publicity, other litigation, giving information to all sorts of people. So far as respect for Court orders is concerned, he has declared that he will not observe any injunction in this matter, and has actually defied the Court's injunction to the extent that he has been sent to prison.

In those circumstances, no Tribunal or Court could properly make an order for discovery of documents in his favour, having seen what he has done so far, unless utterly persuaded that he had repented of that attitude and that his word could be relied on when he said that he would not use these documents for any improper purpose. We have already read a letter in which he says that he is hiding documents, concealing documents, and that those will automatically be disclosed to the damage of the Respondents.

I hope we have said enough to show, first of all, that there are no grounds whatever for interfering with the order which is made in this case, and that this appeal is indeed misconceived.

In addition, if all these matters were before the learned Chairman (and we believe they were not) there is abundant material for saying that it would have been wholly improper for him at that stage, without hearing the Respondent employers, to make any order for discovery of any document whatever, or (it might be said) to exercise any other discretionary power in favour of Mr Vickerstaff; but that of course would be entirely for the Chairman himself.

If it is thought necessary to renew this application, these are among the matters which will no doubt have to be considered. All we say at the moment is that this appeal is seen by us to be utterly without foundation and must therefore be dismissed.

This appeal was, in the sense set out in our Rule 34, unnecessary, improper, or vexatious, showing unreasonable conduct by Mr Vickerstaff. We accept what he tells us, that he is a layman, but what he has said in various letters and documents show sufficiently what his attitude to this has been. In the circumstances we think that justice will be met if we

order him to pay £200 towards the costs of the Respondents in attending this appeal and defending it.