United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 1265_95_1112

Appeal No. EAT/1265/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 11th December 1995

THE HONOURABLE MR JUSTICE KEENE

MR A D TUFFIN CBE

MRS R A VICKERS

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MR D T ROBINSON          APPELLANT

SWIFT GROUP LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR J LATHAM

(Representative)

The CareAssist Group Ltd

CareAssist Court

Wheatfield Way

Hinckley

Leicestershire

LE10 1YG

For the Respondents NO APPEARANCE OR REPRESENTATION


 


MR JUSTICE KEENE: This is an appeal on an interlocutory matter. In the Industrial Tribunal proceedings this Appellant is the applicant, and in those proceedings he seeks compensation for unfair dismissal as well as redundancy payments. The Appellant was a plumber with the Respondent company, who were manufacturers of touring caravans. The Appellant was declared redundant on 25th May 1995. He alleges in his originating application three grounds for the unfairness of his dismissal.

The first is an allegation that the company did not consider the option of short-time working as a means of avoiding redundancy. The second is that there could specifically have been an equal sharing of work for the Appellant and a colleague, and thirdly, and with most materiality to the present appeal, a ground which reads as follows:

"In any event, my selection for redundancy was unfair in that a less qualified employee was transferred into my job at the time of my redundancy and is now carrying out my duties. I believe any reasonable employer would have found my skills and experience to be greater than those employees retained."

The Respondent put in a Notice of Appearance and set out some lengthy reasoned grounds for resisting the application. The dismissal of the Appellant was admitted in those grounds, as was the fact that it was by reason of redundancy, but in essence the Respondent says that the dismissal of the Appellant was not unfair. In the course of that Notice of Appearance, the Respondent spells out in some detail the method of selection used to identify the Appellant as one of those who should be declared redundant. In particular it is said in paragraph 6 that at the time of the review of the plumbing sections of line 1 and line 2 the company employed six plumbers; the department managers concluded that two positions would have to be made redundant as work levels had reduced and would reduce further. The assessments were then carried out by the managers and the Appellant is said to have scored less than the others. In consequence, therefore, he was identified as potentially redundant after passing through certain procedures. He was duly dismissed on that basis.

The adviser to the Appellant sought what he described as further and better particulars of parts of the Notice of Appearance by letter dated 23rd October 1995. By the 10th November 1995 no reply had been received from the Respondent, and on that date the adviser to the Appellant wrote to the Industrial Tribunal seeking an Order requiring the information to be supplied as soon as possible, bearing in mind that the hearing date was fixed for 20th December 1995. That application however was refused by a Chairman of the Industrial Tribunal, and the Chairman gave further details of his refusal by letter dated 24th November 1995. After saying that there was no duty on a Chairman to give reasons for interlocutory decisions, he stated that in this case the Appellant was seeking matters of evidence and not further and better particulars. He also referred specifically, in relation to certain of the particulars that had been requested, to the decision of the Court of Appeal in British Aerospace plc v Green and Others [1995] IRLR 433.

The matters as to which further and better particulars so-called are requested by the Appellant relate to three of the paragraphs in the Notice of Appearance. In respect of paragraph 4 the Appellant seeks a copy of the review carried out by his Departmental Manager, or if no such document exists, confirmation of the number of employees together with their job title required to carry out the reduced production in both line 1 and line 2. In relation to paragraph 5 of the Notice of Appearance, the Appellant seeks to know the criteria used in the selection process; confirmation of the possible points or grades allocated to each of the criteria; a copy of the specimen matrix used for the selection process in the Appellant's department; a copy of the marked matrix in respect of the Appellant; and a copy of the assessment of the Appellant's previous six months performance, as used in the selection process. Finally, in relation to paragraph 6, the Appellant seeks the names of the other employees against whom the Appellant's performance was compared; confirmation of the Department Managers who concluded that two positions would have to be made redundant; the dates on which these assessments were made; the scores allocated to the other employees in the pool for selection; and the name of the other person declared redundant, plus the date of that redundancy.

Before us today, Mr Latham who appears on behalf of the Appellant has emphasised that the information he seeks relates solely to the other plumbers and their mates within the Appellant's own part of the Respondent's activities. He has told us that there were, including the Appellant, six plumbers and two plumber's mates, making a total of eight in all. He argues that there is no conflict between the requests which he is putting forward and the decision of the Court of Appeal in the British Aerospace case, and he also comments that he is not in a position to advise the Appellant properly on his prospects of success without this information. We turn to deal with these matters.

We say at the outset that although the letter of 23rd October 1995 containing these requests was said to be a request for further and better particulars, it is partly that and partly also a letter seeking discovery of certain documents, as the summary of it which we have already referred to earlier in this judgment indicates. We emphasise that because the British Aerospace decision was largely dealing with discovery of documents. So far as discovery is concerned, any documents that are requested have got to be relevant to the issues that arise in the case, and indeed if they are to be produced, it must be shown that they are necessary for the fair disposal of the case or to save costs. The documents sought in this particular case could only be relevant in relation to the issue identified by the Appellant's third complaint about the unfairness of his selection. That has particular reference to a less qualified employee being transferred into his job, but also makes reference to the skills and experience of the Appellant as compared to others.

We have considered the British Aerospace decision. It is to be observed that what the Court there was particularly at pains to avoid was the applicants embarking upon a substantial fishing expedition through seeking a very large number of documents. It was a case where the employees were seeking discovery of the assessment forms of all those who had been retained. The Court of Appeal rejected that, saying in essence that an applicant who alleges that a redundancy selection procedure was unfairly applied in practice and who seeks discovery must specify the respect in which the process was allegedly unfairly applied, with sufficient particularity to demonstrate the relevance of the material which is being sought. An applicant, said the Court, is not entitled to say "the process was unfair, I do not know in what respect it was unfair, but I want discovery in order to find out." Consequently, discovery has to be related to the issues. Nonetheless, we do also observe that in that case the employer had already disclosed the marks which had been obtained on the scoring by all the assessed employees. Moreover, the assessment form relating to each applicant had also been disclosed and produced by the employer. What the Court of Appeal was anxious to avoid, it seems to us, was the production of a very large number of assessment forms in relation to all the retained employees, because it could see that that would be little more than a fishing expedition that was not justified on the issues identified. If we turn to the present case, it does seem that the Chairman, in relying on that decision in the British Aerospace case, has adopted an interpretation of it which goes somewhat beyond the scope of the decision. For that reason it is proper for us to intervene in this case because it seems to us that there has been an error in the approach adopted.

If we look at the specific matters which are requested in the present case, it does not seem to us that a copy of the review carried out by the Appellant's department manager is something which is necessary for the fair disposal of the application made to the industrial tribunal, nor is confirmation of the number of employees required to carry out reduced production on lines 1 and 2. Those are not relevant to the issue, because those only relate to whether the numbers of persons to be declared redundant was correctly assessed in the first place by the employer. The issue which arises on this application is whether the selection process after that number had been identified was fairly carried out.

Turning to the requests in respect of paragraphs 5 and 6 of the Notice of Appearance, its does seem that most of the requests made there are justified on the basis of the principles to which we have referred. If the issues identified upon the pleadings are to be properly explored, then the criteria used in the selection process ought to be identified. The possible points or grades allocated to each of those criteria are a necessary part of understanding the Appellant's own assessment form, described as a marked matrix in this particular request. That marked matrix ought to be produced and we do so order, and as we have just indicated, the grades or points allocated to each of the criteria, that is request 2b, ought also to be provided. If those matters are done we cannot see that a specimen matrix is required, nor does Mr Latham really press that point.

Request 2e refers to the assessment of the Appellant's previous six months performance: that is a document referred to in the pleading, that is to say in the Notice of Appearance, and on the usual principles it ought to be produced.

Turning to those matters arising under paragraph 6 of the Notice of Appearance, we understand that the matters being referred to here are limited to the other seven employees within this particular department, that is to say, the other five plumbers and the two plumbers mates, and it is on that basis that we consider the requests in relation to paragraph 6. It seems right that particulars should be given of the names of the other seven employees against whom the Appellant's performance was compared, and the scores of those other employees should be provided together with the dates upon which the assessments were carried out. However, we cannot see that the request under 3b, confirmation of the Department Managers who concluded that the two positions would have to be made redundant, is necessary. Nor is the name of the other person declared redundant together with the date of that redundancy relevant to the issues raised on the documentation.

Therefore this appeal succeeds to the degree that we have indicated, but only to that degree. We will order that the following particulars be provided or, where appropriate, documents be provided by the employer company the Respondent, that is to say those matters covered in the letter of 23rd October 1995 at numbered paragraphs 2a, 2b, 2d, 2e, 3a, 3c and 3d.

[Mr Latham you would no doubt like some time limit on that, because we are very conscious that the hearing of this matter is fixed for 20th December 1995, which is only just over a week away. Nonetheless having said that, there must clearly be some time given to the Respondent to deal with this matter. Unless you have any further submissions on the time scale. ] We propose to order that these particulars and documents be provided to the Appellant by close of business, that is to say 4.30 p.m., on Friday, 15th December 1995. We will of course give liberty to apply to the Respondent if any problem arises in respect of that order. Such application should be made in the first instance to the Industrial Tribunal.