United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR A SENDALL (of Counsel) Mr P Bramhall Messrs Dibb Lupton & Alsop Solicitors 117 The Headrow Leeds LS1 5JX
For the Respondent	NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT


 


MRS JUSTICE SMITH: This is an appeal against an interlocutory decision made in writing by a Chairman of Industrial Tribunals on 25 September 1996. The Chairman refused to order that the Respondent to this appeal, the Applicant in the matter before him, should disclose documents on discovery at the request of the North Yorkshire Ambulance Service NHS Trust.

The Applicant, Mrs Hebditch, had lodged an Originating Application claiming that she had been unfairly dismissed and constructively dismissed. There is a letter of resignation in our file dated 22 February 1996. That letter gave no reasons for her resignation but the Originating Application which was filed on 20 June 1996 sets out the basis of her claim. In effect, she claims that from the time that she moved to a new position within the Appellant's organisation, she was not given the support or training that she had been promised. In particular, she claims that the job was new to her and she had been promised training which was never forthcoming. There were also difficulties over the funding for the post. She complained that in the last four weeks before she left she was having to undertake routine inputting of information into the computer as there was nobody else to do that work which should have been done by a more junior employee.

In the Notice of Appearance the Appellants dispute all her allegations of lack of support. In addition, at paragraph 10 they say this:

"... The reason the Applicant gave to colleagues for her resigning was that she had accepted another job which was nearer to her home and was more like the kind of work she was used to."

In other words, the Appellants were saying in their Notice of Appearance that this was a false claim for constructive dismissal. Really, Mrs Hebditch had decided that she would prefer to work elsewhere.

The Appellants sought voluntary discovery by letter dated 9 September 1996. The Appellants' Solicitors offered to prepare bundles of documents for the hearing and then said:

"Further, we would be obliged if you could let us have all documents in your client's possession custody or control relating to her application and appointment to her present employment and, if different, the first employment which she undertook after leaving our client's employment.

We would also be grateful if you could let us have copies of any applications and correspondence relating to any other attempts by your client to obtain alternative employment from and including November 1995 up to the date of her resignation.

Kindly confirm your agreement to voluntarily disclosing these documents before noon on Thursday 12 September 1996."

We observe that that was only three days ahead.

On 12 September the Appellants' Solicitors wrote to the Regional Secretary of the Industrial Tribunals saying that the Applicant's representative had failed to confirm, by the deadline, that the Applicant was prepared to disclose the documents voluntarily and they sought an Order requiring disclosure.

On 18 September 1996 the Regional Secretary to the Tribunals wrote to say that the Chairman had directed as follows:

"Request refused. Not necessary for the proper determination of the issues."

The Appellants' Solicitor sought a review of that decision and on 25 September 1996 the Regional Secretary wrote to say that the Chairman had directed as follows:

"There is no provision for a review of an interlocutory decision. Having reconsidered the application my decision remains the same."

From that refusal, reconsidered, and again refused, this appeal is brought.

Mr Sendall has submitted that the wrong test was applied by the Industrial Tribunal Chairman and, if the right test was applied discovery would have been granted. In the alternative, he submits, that the refusal to order disclosure was perverse.

We deal first with the question of whether the Chairman applied the proper test. Rule 4 of Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 provides:

"A tribunal may, on the application of a party made either by notice to the Secretary or at the hearing of the originating application, or of its own motion -

(b) 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, ..."

Order 14 Rule 8 of the County Court Rules 1981 provide:

"8 - (1) On hearing of an application under rule 1, 2, 5 or 5A, the court, if satisfied that the discovery, disclosure, production or supply sought is not necessary, or not necessary at that stage of the action or matter, may dismiss or adjourn the application and shall in any case refuse to make an order if and so far as it is of opinion that discovery, disclosure, production or supply, as the case may be, is not necessary either for disposing fairly of the action or matter or for saving costs.

(2) No order shall be made under rule 7 unless the court is of opinion that production of the document is necessary as aforesaid."

Rules 1(1), 2, and 5A deal with discovery. Rule 7 deals with production to a court.

It is true, as Mr Sendall has pointed out, that the Chairman used the expression "not necessary for the proper determination of the issues" whereas the County Court rule speaks of discovery being necessary for disposing fairly of the action in the matter or for saving costs. We do not think that the difference between these two expressions is real. We think that there is only a semantic difference and we are satisfied that the Chairman has applied the proper test.

That being so, the only basis upon which this Tribunal could interfere with the Chairman's decision is perversity. We would have to be of the view that his decision was plainly wrong and such that no reasonable Chairman of Tribunals, properly directing himself, could have reached.

We have considered this matter very carefully. Two of us are quite clearly of the view that we ourselves would have granted this application for discovery had we heard it at first instance. The third of us is less certain, but may have done. But we are all three agreed that we cannot say that this Chairman's refusal was so obviously wrong that it must be castigated as perverse.

We do think that this case will very largely turn upon oral evidence. We can well understand why the Appellants wished to see these documents, if they exist, and we consider that they might well have been useful. However it seems to us that the Chairman may well have taken the view that what this Applicant is complaining about is an attitude towards her employment over a substantial period of time, from the moment that she took up her new post. If that is right, and it does appear to be the basis of her complaint in the Originating Application, it may be nothing to the point that she had decided to apply for other jobs before she actually handed in her notice. We know not, but it does seem to us that if the Chairman took the view that these documents were not of great moment in the context of this case, we could not say that he was plainly wrong.

Accordingly, this appeal must be dismissed.