United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 1205_94_1603

Appeal No. EAT/1205/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 16 March 1995

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR J R CROSBY

LORD GLADWIN OF CLEE OBE JP

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MR S D TIYAMIYU          APPELLANT

LONDON BOROUGH OF HACKNEY          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR DAMIAN BROWN

(Of Counsel)

Hackney Law Centre

236-238 Mare Street

London

E8 1HE


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal by Mr Tiyamiyu against an interlocutory decision of the Industrial Tribunal held at London South relating to a number of matters. The only matters which we are concerned with today are those which relate to discovery of documents. The Tribunal heard the matter over two days on 24 and 25 October and notified the terms of the order and the reasons for the decision to the parties on 31 October. The order was sought by Mr Tiyamiyu in the course of his proceedings, initiated by six separate originating applications, complaining of race discrimination and victimisation by the London Borough of Hackney.

He failed to obtain the discovery which he sought and therefore appealed to this Tribunal by a Notice of Appeal dated 9 December 1994. At that time it appears that

Mr Tiyamiyu did not have legal advice or representation. The matter was set down for a preliminary hearing by this Tribunal to determine whether the Notice of Appeal revealed an arguable point of law. We only have jurisdiction to entertain an appeal which raises a legal point. We were informed earlier in the week that the Hackney Law Centre now acted for

Mr Tiyamiyu in this matter and wished to be placed on the record, that he had obtained emergency legal aid and that Mr Brown would be representing him at today's hearing. That has happened and we express our gratitude to Mr Brown for the help which he has given us in disentangling this interlocutory matter.

In deciding how to deal with the appeal we approach the matter in this way. Under its rules the Industrial Tribunal has power to grant discovery and inspection of documents as might be granted by a County Court; Rule 4. It is a discretion. The practice of the County Court is to order discovery of documents relevant to the issues raised in the proceedings. Discovery can be an oppressive process. There is no general right in anybody, in litigation or otherwise, to inspect other peoples private documents. In litigation, for the purposes of deciding the dispute, discovery is ordered of documents which are relevant to the issues in the sense of helping to prove the allegations made and tending to disprove the allegations made on the other side to the issues.

As it is a discretion, it is difficult to appeal from. The Appeal Tribunal only interfere with the exercise of the discretion if there was an error of principle in the way it had been exercised, or if the exercise of it was in a manner which no reasonable Tribunal, with a proper understanding of the law and the facts, could have made. In this case Mr Tiyamiyu wrote a letter to the Tribunal requesting discovery of a great many documents. The particular ones we are concerned with are four lots of documents. First the findings of an internal auditor/district auditor in respect of the Whitewater matter; secondly, Mr Stewart's personnel file; thirdly, Ms Taylor's personnel file and fourthly, the personnel file of Mr Yorath.

The Tribunal rejected the application in respect of the Whitewater matter and in respect of Ms Taylor's file. In respect of Mr Stewart's file and Mr Yorath's file they asked for the documents to be produced to the Tribunal Chairman. The personnel file of Mr Yorath was made available. It was examined and the conclusion was that there were no matters whatsoever in it which related to the issues in the case. Dealing first with that matter there is no way in which we can reverse the decision of the Tribunal. They have looked at the documents. We have not had them produced to us. They made a finding that the documents were not relevant. There is no way in which that can be attacked today as containing an error of law.

Secondly, as to the Whitewater file, this matter has now passed out of contention because we have been shown a letter dated 20 October 1994, sent by the Legal Services Division of the Council to Mr Tiyamiyu, saying that he had indicated to them that what he required was a copy of the settlement agreement and the joint audit report compiled regarding that matter. The Council indicated that disclosure of the settlement agreement would be considered if a restriction order was directed by the Industrial Tribunal. Mr Tiyamiyu has indicated to us that he would be willing for a restriction order to be made. The Legal Services Division state that a copy of the audit report is awaited. It may be that similar restrictions will apply to the disclosure of that document.

It therefore appears that in those cases, subject to restriction orders which Mr Tiyamiyu would not object to, the Council is willing to produce those documents. The matter can be clarified in further correspondence with the Council and with the Industrial Tribunal when it is asked to make the appropriate restriction order.

That leaves Mr Stewart's personnel file and Ms Taylor's personnel file. So far as

Ms Taylor's personnel file was concerned, the Tribunal decided that there was nothing relevant in relation to that file. They refused to order any discovery. So far as Mr Stewart's personnel file was concerned, it could not be located and has not therefore been inspected by the Tribunal or its Chairman. No order for discovery of those documents was made in favour of Mr Tiyamiyu.

In our view, it is impossible to say that the Tribunal were in error of law in refusing

Mr Tiyamiyu's request for production of the personnel file of Mr Stewart or the personnel file of Mr Taylor. The request is obviously too wide. It includes many documents that would be of no relevance to the issue arising in Mr Tiyamiyu's proceedings against the Council and therefore not the subject of discovery. The way in which we propose to deal with it, therefore, is to dismiss the appeal because there were no grounds in law for faulting the decision of the Tribunal. We would add that it would be no service to Mr Tiyamiyu to allow the appeal to go on. We could not make an order against the Council without a full hearing at which they were represented. A full hearing would not take place for many months. The effect of the delay in the full hearing taking place would be that the dates set aside for the hearing of Mr Tiyamiyu's applications would have to be vacated. The hearing of his grievance would be postponed. That cannot be in his interest. It is obviously in his interest that this matter is brought before the Industrial Tribunal as soon as possible. We think that it is in Mr Tiyamiyu's own interest that we take this course, and dismiss the appeal. We add this for his benefit. It appears to us that, if a fresh application is made to the Industrial Tribunal on a more limited basis in respect of Mr Stewart's file and Ms Taylor's file, then there may be a prospect of the Tribunal taking the view that certain documents in the file are relevant to the issues, in particular the issue of the circumstances of

Mr Tiyamiyu's alleged misconduct and Mr Stewart's involvement in it and the comparison of Mr Tiyamiyu's treatment with the treatment that was given to Ms Taylor for her alleged misconduct. In relation to Mr Stewart it is our view, though we are not intending to bind the Tribunal on this, that documents in his file relating to alleged acts of misconduct by him, the circumstances of the alleged physical assault by him on Mr Tiyamiyu, his letter of resignation and the related letter of acceptance of resignation by the Council, may all be relevant to the issues raised in Mr Tiyamiyu's originating applications. It may also be possible, though this case does not appear to us to be so strong, that there are certain documents in Ms Taylor's file (certainly not the whole file) relating to the way in which she was treated, in respect of alleged gross misconduct. That may be relevant for a comparison to be made between the way that she was treated for misconduct alleged against her and the way that Mr Tiyamiyu complains he was treated in relation to misconduct alleged against him.

We therefore give those indications. What Mr Tiyamiyu should now do, preferably with the benefit of legal advice, is to submit a fresh application for discovery on a more limited basis to the Industrial Tribunal. He is not precluded from doing that, we make clear, by the fact that the Tribunal were asked to review their decision and refused to review it. It appears that immediately after announcing the decision, Mr Tiyamiyu indicated that he wished a review, and, subject to the result of the application review, to lodge an appeal. The Tribunal considered the application for a review and unanimously decided it had no prospect of success and it was refused. The reason it was refused was what Mr Tiyamiyu was asking them to review their decision to refuse to give him discovery of all of the documents of the wide description of personnel files of Mr Stewart, Ms Taylor and Mr Yorath. It seems to us that this was a case of an application made on too broad a basis failing, when, if it had been made on a more limited basis, it might have succeeded. There is nothing that has happened, either before the Industrial Tribunal or before this Appeal Tribunal, which precludes Mr Tiyamiyu from now seeking discovery on a more limited basis. With those remarks we order that this appeal is dismissed.