United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON
For the Respondents	MR DAVIDSON (Solicitor) Lincoln City Council City Hall Beaumont Fee Lincoln LN1 1DD


 


JUDGE PETER CLARK: We have before us two appeals by Mrs Simpson, the Applicant before the Industrial Tribunal, against refusals by a Chairman to order discovery of documents by the Respondent employer, Lincoln City Council.

Background

No substantive hearing has yet taken place in this case. Accordingly, our recital of the facts must necessarily be tentative. The position in outline appears to be as follows:

The Applicant commenced employment with the Respondent on 31 October 1988 according to a statement of particulars of terms of employment issued to her on 10 April 1989. She held the post of Senior Estates Officer in the Respondent's Housing Department.

On about 11 November 1994 she attended at a tenant's house where she was subjected to threatening and abusive behaviour by the occupier. As a result she went off sick on 18 November, suffering from what her general practitioner diagnosed as stress disorder. Certified absences for work then followed.

Her contractual entitlement to sick pay provided for six months' full pay, followed by six months at half pay, possibly subject to special consideration by the employer, where a further period of sick leave on full pay would materially assist a recovery of health.

After she had completed six months' sick leave on full pay it seems that a recommendation was made to restrict her to half pay. She raised a grievance, set out in a letter to the Director of Housing dated 24 June 1995, and as a result, in the exercise of its discretion, the Respondent continued her on full pay until her eventual dismissal which took effect on 18 December 1995, following a recommendation from the Respondent's medical adviser that her employment be terminated on medical grounds. She had been off sick since 18 November 1994, apart from a period in September/October 1995 when she had returned to work but had been unable to continue for medical reasons.

On 13 March 1996 she presented a complaint to the Industrial Tribunal.

The Complaint

The Originating Application, completed by her trade union representative and signed by the Applicant, complains only of unfair dismissal. The grounds of complaint are expressed thus:

"I believe that I was forced out of my job because of the lack of support from my employer following a serious encounter with an abusive and threatening client."

The Discovery Applications

On 14 November 1996 the Applicant wrote to the Nottingham Industrial Tribunal seeking an order for discovery in the following terms:

"Details of Long Term Sick Employees from January 1991 - December 1995.

1. Names plus male or female.

2. The length of sickness.

3. How long full pay was submitted.

4. Whether or not sickness was caused through a work related incident or not."

She added:

"I appreciate that this information is confidential. However, it is highly relevant to the point I wish to make at the Tribunal ie I was discriminated against both sexually and by the reason for my illness.

I don't expect the full Tribunal to be allowed sight of this confidential information. However, it is important that the chairperson sees the evidence."

That application was refused by the acting Regional Chairman, Mr Sneath, in a letter dated 15 November, on the grounds that the Applicant was seeking to raise a new issue which is probably irrelevant and that discovery would be unduly onerous on the Respondent.

The Applicant made a further application for discovery by letter dated 19 November 1996 to the Tribunal. In that letter she stated:

"I was discriminated against and the documents I have asked for would prove this. They are highly relevant to my case. The action of discrimination by my employer when he 'cut' my pay, but didn't 'cut' other employees ('male') pay who were on long term sick leave, caused me great distress and exacerbated my illness by this injustice."

By letter dated 25 November a Chairman of the Industrial Tribunals refused her further application for discovery on the grounds that her claim is one of unfair dismissal. It is now too late to allege sex discrimination.

Following those two refusals to make the orders sought, the Applicant wrote to this Tribunal on 27 November 1996 a letter in which she states:

"I am not alleging sex discrimination as another issue - it is part of the unfair dismissal."

She followed that letter with a formal Notice of Appeal dated 1 December 1996.

Issues before the Tribunal

The Applicant has made it absolutely clear to us that she is not seeking to make a separate complaint of unlawful sex discrimination, despite referring to the Sex Discrimination Act and Article 119 of the Treaty of Rome in her proof of evidence which is before us.

The question therefore arises, what is the relevance of the documents which she seeks by way of discovery to her complaint of unfair dismissal?

The material sought can only go to the question of disparity of treatment between her case and that of other employees who were "long term sick" and who were treated differently by the employer. She has raised only one other case specifically; that of a male colleague Mr Rodney Pearson, who suffered a similar illness and who she claims was treated more compassionately. That employee, she says, took eight months sick leave on full pay and then returned, after a period of part-time work, to full-time employment. In her case she was off sick from 18 November 1994 until 18 September 1995, a period of ten months in respect of which she received full pay. The earlier decision to cut her pay to half-rate taken in June 1995 was then rescinded on about 6 July and her full pay made up. She returned to work from 18 September to 23 October 1995 but found that she could not continue and, on medical advice, the employer terminated the employment on 18 December 1995.

We remind ourselves that a dismissal will only be held to be unfair on the grounds of disparity of treatment where the case or cases relied upon as being comparable are truly similar. See Hadjioannou v Coral Casinos Ltd [1981] IRLR 352, approved by the Court of Appeal in Paul v East Surrey District Health Authority [1995] IRLR 305, 309 per Beldam LJ.

During the course of argument before us today, Mrs Simpson made it clear that she only required discovery of the Respondent's records relating to Mr Pearson for the purpose of establishing that no decision was taken in his case to stop full pay after six months sickness had elapsed. His full pay continued uninterrupted for the whole period of about eight months during which he was off sick before returning to work part-time.

We asked Mr Davidson whether there was any dispute as to those facts relating to Mr Pearson. He formally conceded that there was not, and as indicated to the parties we have recorded that concession in this judgment.

Accordingly it seems to us that there is no necessity for discovery in relation to Mr Pearson.

As to the wider discovery sought by Mrs Simpson, we take the view that it is not permissible for an applicant to embark on "a fishing expedition" in order to see whether there are other cases which might support a disparity argument.

In these circumstances we can well see why the Industrial Tribunal Chairman refused the Applicant's applications for discovery.

However, that is not the end of the matter. This is an appeal against the Chairman's interlocutory order. It is now well-established that this Tribunal has no jurisdiction to interfere with an interlocutory order made by the Industrial Tribunal unless it is first shown that there was an error of law in the Tribunal's approach.

For example, in Adams v West Sussex County Council [1990] ICR 546, an appeal against a Chairman's refusal to order discovery of certain documents, Wood J said this at page 550 H:

"Thus, in examining an interlocutory order of an industrial tribunal or of a chairman sitting alone we would define three issues: (a) Is the order made one within the powers given to the tribunal? (b) Has the discretion been exercised within guiding legal principles? (e.g. as to confidential documents in discovery issues); (c) Can the exercise of the discretion be attacked on the principles in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1KB 223?"

Applying that approach to the circumstances in this case, we are quite unable to say that any error of law has been made out in this appeal. Accordingly, it must be dismissed.