United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS JANE DEIGHTON (Solicitor) Deighton Guedalla Solicitors Top Floor 30/31 Islington Green London N1 8DU
For the Respondents	NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENTS


 


JUDGE PETER CLARK: By an Originating Application dated 9th September 1996 the applicant, Mrs Norris, complained of unlawful sex discrimination against the respondents, Chemilines. In essence, she contends that she was sent for a job interview with the respondent through a recruitment agency, only to be told a week later that the respondent did not want to take on young mums with children. This allegation is firmly denied by the respondent in its Notice of Appearance.

On 28th January 1997 solicitors for the applicant wrote to the respondent seeking further and better particulars of the Notice of Appearance and specific discovery. Failing compliance with those requests by 7th February 1997, the solicitors indicated that they would make an immediate application to the Industrial Tribunal for an order.

On 17th February 1997 the solicitors instructed by the respondent wrote to the applicant's solicitors in these terms:

"Further to our letter of the 7th February, we write to confirm that we have met with Counsel and will be preparing the appropriate reply to the information requested in your letter to our client, notwithstanding the fact that we do not consider your letter to be a request for Further and Better Particulars as it did not specifically relate to the Reply filed by our client."

and later:

"We enclose, herewith, the job application form which is completed by all potential employees of our client, both male and female.

The further information you require will follow; as the information is quite substantial in its volume, we anticipate it will not be filed with you for a further 10-14 days."

The applicant contends that apart from a blank employment application form and the respondent's staff profile details, no other discovery has been given by the respondent .

On 10th March the applicant's solicitors faxed an application for discovery to the Industrial Tribunal, repeated on 13th March. Their fax of 10th March drew attention to the respondent's solicitors promise to provide discovery within 10-14 days in their letter dated 17th February 1997.

On 13th March the Industrial Tribunal wrote to the applicant's solicitors in these terms:

"A Chairman of the Industrial Tribunal has directed that your request for an order for discovery and further and better particulars is refused as the information is unnecessary. This is a simple issue concerning the non-selection of the Applicant and can be dealt with on oral evidence."

On 18th March the applicant renewed her application, and identified the documents sought in a schedule in these terms:

"(i) All documents, notes, forms and memoranda relating to the advertising, shortlisting and interviewing for the post for which the Applicant applied. Including copies of the curriculum vitae of all applicants for the post.

(ii) All documents, notes and memoranda held by the Respondents relating to the Applicant.

(iii) All documents, forms, notes and memoranda held by the Respondents concerning the Respondents' dealings with Securicor Recruitment Services Ltd.

(iv) The Equal Opportunities Policy of Chemilines Ltd or express confirmation that no such policy exists."

On 21st March, that is today, the applicant's solicitors received a telephone message from the London (North) Industrial Tribunal at about 9.45 a.m. in these terms:

"If the Applicant wishes to dispute the order she should appeal as it is now too late to have a meaningful order. In any case the application is refused for the same reasons as before."

The applicant has accepted that invitation and an appeal has been heard by us this afternoon.

Interlocutory appeals

The Court of Appeal in Carter c Credit Change Ltd [1979] ICR 908 expressly affirmed the judgment of Arnold J in Bastick v James Lane (Turf Accountants) Ltd [1979] ICR 778 at 782, where Arnold J said in setting out the parameters of this appeal tribunal's powers to interfere with interlocutory orders made by Industrial Tribunals:

"Either we must find, in order so to do, that the tribunal, or its chairman, has taken some matter which it was improper to take into account or has failed to take into account some matter which it was necessary to take into account in order that discretion might be properly exercised; or alternatively if we do not find that, that the decision which was made by the tribunal, or its chairman, in the exercise of its discretion was so far beyond what any reasonable tribunal or chairman could have decided that we are entitled to reject it as perverse."

In this appeal Miss Deighton submits:

(1) that the Chairman misdirected himself in deciding the application for discovery on the ground that it was a simple issue which could be dealt with on oral evidence. The question, she submits, is whether the documents requested are in the possession, custody or power of the respondents and are relevant to a question in the proceedings and discovery is necessary for the fair disposal of the case.

(2) that the respondents' solicitors agreed to provide the documents in issue; relying on that promise no application for discovery was made until 10th March, bearing in mind the hearing date listed for 24th March. She submits that the Chairman failed to take into account this relevant factor in reaching his or her decision.

We accept both submissions and we shall allow this appeal and set aside the order of 13th March, pausing only to observe that it was open to the Chairman to indicate to the applicant that rather than appeal to this tribunal she could simply renew her application for discovery at the hearing on 24th March. These are interlocutory orders not final orders. That is the consequential direction which we shall make.

At the hearing on 24th March the application for discovery will be taken as a preliminary question. We cannot determine the point since the respondents now say in a letter to the Registrar dated 21st March, that they have provided all the available material to the applicant. That does not sit comfortably with what they said in their letter of 17th February. However, it us for the Industrial Tribunal to investigate the question of discovery, with both parties present on 24th March.

For that purpose we direct that the respondent bring all originals and sufficient copies of all documents in their possession, custody or control which fall within the categories now sought by the applicant and set out above in this judgment.

If no order for discovery is then made, the substantive hearing may proceed; if an order is made, it will then be for the Industrial Tribunal to consider any application for an adjournment made on behalf of the applicant.