United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR B CARR (Of Counsel) Andrew M Jackson & Co PO Box 47 Essex House Manor Street Hull HU1 1XH
For the Respondent	MR A FREER (Solicitor) GMB Legal Department 22/24 Worple Road London SW19 4DD


 


JUDGE HICKS QC: The Applicant before the Industrial Tribunal, Miss Wolstenholme, was employed by the Appellants in this appeal, Rank Hovis Ltd. She had a partner, who was also employed, and because of a move on his part to Hull she obtained a transfer, so that she was working at Hull for the employers.

There came a time when the partner's employment moved again, to Selby, and it is the case which the employers wish to advance at the hearing of Miss Wolstenholme's application that, because of that and primarily because of that, she wished to obtain employment also in the Selby area and to leave the employment of her employers.

Miss Wolstenholme's case is that the employers were in breach of their contract by imposing unreasonable conditions on her in terms of hours, the extent to which she had advance notice of what the hours were, the sort of work she was asked to do, and so on, and that that was the reason why, as it is not in dispute she did, she gave notice on 30 May 1997 expiring at the beginning of July. That that was in issue between the parties was foreshadowed in the employers' Notice of Appearance to Miss Wolstenholme's complaint of unfair dismissal, in that in paragraph 9 of the annex to the Notice of Appearance the employers alleged that:

"In April, the Applicant's partner's employment was again transferred but this time to Selby. At about the same time the Applicant advised the Respondent that she was not happy working in the Laboratory and would therefore look for other employment."

That was not a very detailed or explicit statement of that point, although the last paragraph of that Notice of Appearance does make it clear that among the issues joined was the Applicant's reason for leaving the employment.

However, the employers in due course came into possession of other potential evidence which they believe supported that case and they wished to carry the matter further by having sight of any documents in the possession of the Applicant which bore on that issue. They therefore wrote to her union on 6 August, first of all, it is fair to say, setting out a list of the documents which were in their possession which they said related to the issues in question in the proceedings and asking effectively for reciprocation by a list of the Applicant's documents relevant to the issues in question, and in particular any documentation relating to alternative employment about which she was enquiring between the relevant dates.

That request was met by a reply which stated effectively that the person dealing with the matter was away until 27 August. In the event, regardless of any other steps in the matter, that request has not been met and is effectively now opposed by Mr Freer on behalf of the Applicant.

The employers' solicitors were not prepared to wait for the return from holiday in any event, not least because the date for the hearing of this application is fixed for a date later this month (I think the 23rd), and so they wrote on 15 August 1997 to the Regional Secretary to the Tribunals asking for an order for general discovery, but in particular the documents relating to alternative employment, and also asking for answers to certain specific questions bearing on the same point. The latter request also had been earlier made to the Applicant's union by the same letter of 6 August.

That application to the Industrial Tribunal was answered on 19 August 1997 on behalf of the Regional Secretary, and the letter says:

"..... This has been referred to a Chairman of the Industrial Tribunals who has refused your requests for Orders."

It is apparent that no reasons whatever were given at that stage. On 20 August the employers' solicitors wrote asking for reasons and referred to the decision of this Tribunal in Independent Research Services Limited v Catterall [1993] ICR 1, which is a decision, we are satisfied to the effect that in the case of Interlocutory Orders as well as final adjudications it is the duty of an Industrial Tribunal to give reasons, not necessarily detailed ones, but some sufficient reasons for decisions.

The response to that request was a letter from the Regional Secretary on 29 August saying that it had been referred to a Chairman who had replied as follows:

"As the Chairman who refused the original application for an order is now on leave he cannot deal with your request for reasons for his refusal. In any event there is no requirement on him in law to give reasons for his refusal.

In the circumstances I have considered your application afresh and refuse it on the grounds that both 1) and 2) [that is to say the request for discovery 1 and the request for answers to question 2] are simply attempts to obtain the applicants evidence in advance of the hearing, known in the vernacular as 'a fishing expedition'.

If, of course, the parties entered into the spirit of co-operation expected of them in Industrial Tribunal proceedings rather than the antagonistic, legalistic practices of the High Court and agreed to exchange witness statements and attempt to agree a bundle of documents before the hearing, no doubt that would assist everyone and shorten the full hearing."

The last paragraph would seem not to be part of the Chairman's reasons for his decision but a general admonition to the parties to co-operate, although it is to be noted that in fact in the High Court witness statements are routinely exchanged and bundles of documents routinely agreed.

Leaving that paragraph aside therefore, the reasons for his decision are contained in the second paragraph of those three, namely - and they seem to be distinct reasons - first that it is an attempt to obtain the Applicant's evidence in advance and, secondly, that it is a "fishing expedition".

In our view, in conformity with the decision in the Independent Research Services Limited v Catterall, reasons should be given in Interlocutory cases as well as final decisions. It would have been an error of law had the Chairman refused to respond to the request that was made for reasons for the first decision. In the event that has been overtaken by events, and for practical purposes Mr Carr and Mr Freer addressed us on the basis of whether the reasons for the second Chairman's decision to the same effect showed any error in law or could be justified, and were content to deal with the matter on that basis, not least because the first decision clearly cannot stand if the second, to the same effect and with reasons, is vulnerable.

The first reason, that the applications are attempts to obtain the Applicant's evidence in advance of the hearing seem to us to be plainly mistaken and erroneous in law so far as the application of a discovery is concerned. An application for discovery is not an attempt to obtain the other side's evidence in advance, if only for the reason that while some of the documents disclosed may be documents which the other side would have put in evidence in any case, one of the most important motives behind nearly all applications for discovery is to see what documents there are which might support the applicant's case, that is to say the applicant for discovery, or undermine that of the opponent, and which the opponent in the absence of voluntary or compulsory discovery would be under no obligation to produce at the hearing or put in evidence. So that ground for the decision in our view is simply erroneous.

So far as the second limb of the application is concerned, to obtain written answers to questions, it is true that there is a good deal more truth in the statement that that is an attempt to obtain evidence in advance. The difficulty about that as a reason is of course that providing such answers is one of the orders which an Industrial Tribunal has jurisdiction to make, and if this was a reason for refusal no such application would ever be successful. We therefore consider that in relation to the second limb of the application also that reason is an erroneous one in law.

The second reason, although the Chairman runs them together, is in our understanding distinct, namely that this was a "fishing expedition". A "fishing expedition" is a common and colourful phrase but it is important to understand in what sense applications of this kind are open to objection on that ground. In our understanding a "fishing expedition", in the sense of an improper application, is one which seeks to obtain grounds for making an allegation or advancing a case which has not hitherto been advanced.

That was not the situation here. The case that Miss Wolstenholme's primary reason for resignation was her desire to obtain employment close to that of her partner had, although briefly, been advanced in the Notice of Appearance, as I have already said, and was carried a little further, although not as far as the employers are now able to carry it, in the letter of application to the Secretary to the Tribunals of 15 August, where the employers' solicitors after making it clear that in their view one of the matters which the Applicant/employee would have to prove would be that the reason for leaving was a breach of contract by the employers and not for some other unconnected reason, go on to refer to the Notice of Appearance and then say this:

"Indeed it will be their case that she left their employment to take up employment elsewhere."

In our view, not only was this not a "fishing expedition" in the pejorative sense but there was information available before the Chairman who made the decision that that was so and we therefore consider that he was in error in describing it as such and giving that as a reason for the decision.

We therefore conclude that the Chairman did err in law and in the circumstances it is for us to exercise our own discretion in relation to this application, both because all the necessary information is as much before us as it would be before the Tribunal if the matter were remitted and also because the hearing is fixed for 23 September and there simply is not time to remit it for further consideration.

In our judgment the application for discovery is one that should be granted. It is elementary that where there are contemporaneous documents relevant to an issue before any court or tribunal they are likely to be helpful in arriving at the truth of the matter, very often much more so than the later recollection of the witnesses. There is an inherent risk of injustice if a party is able to advance a case which is inconsistent with, or even on which doubt may be cast by, documents in that party's possession which have not been disclosed.

Mr Carr has advanced this appeal on the basis that the application for discovery is confined within the "narrow limits", as he puts it, of the documentation relating to applications for alternative employment. We therefore consider it both appropriate and, on the way the Appellant puts the case, right that the Order should be limited in that way and not be a general order for discovery. We therefore propose to make an Order for discovery in the terms of the application but limited to the second part of that application, so that it will be an Order for discovery of all documents "relating to alternative employment about which the Applicant was enquiring between 1 February and 30 May 1997 and of all documents regarding alternative employment that the Applicant obtained after 30 May 1997 and up to 6 August 1997".

In our view the request for answers to questions is on a different footing. In order to maintain this application for unfair dismissal in circumstances where the Applicant herself gave notice, and therefore must establish a case of constructive dismissal, it seems virtually inevitable that she will give evidence. The questions sought to be raised are ones which can therefore be put in cross-examination and we do not consider that any sufficient advantage to the fair disposal of the matter would be achieved by requiring her to answer them in advance. We have not read out the questions, but they cover effectively the same ground as the application for discovery about applications for alternative employment.

We therefore propose to allow the appeal and make an Order for discovery in the terms which I have stated, but we should deal with some submissions which Mr Freer made in opposition to the appeal. The first, as we understood it, turned on the fact that the Industrial Tribunal by virtue of Regulation 13 paragraph (1) of The Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 has, subject to the provisions of those Rules, power to regulate its own procedure. That was supported by a reference to the definition of the word "decision" in Regulation 2(2), which we do not consider adds anything to the point. The point is, as we understand it, that the power to regulate its own procedure first of all dispenses with the need for giving reasons, and secondly, perhaps, although we are not clear about this, in some kind of way enlarges the extent to which the exercise of a discretion is not impugnable.

There is nothing in our view in this point. The power to regulate procedure has nothing to do with whether the substantive decision made, whether at a final hearing or on an Interlocutory Order, appealable or not. What is true is, and what we take fully into account, is that a decision made in exercise of a discretionary jurisdiction, which this was, is not to be upset on appeal unless there is a plain error of law involved, whether by failing to give reasons or by giving erroneous reasons - reasons which cannot support the decision - or by failing to take into account matters which should be taken into account or by reason of the form of error of law which passes under the name of perversity. All that is perfectly true and we have taken it into account. Discretionary decisions are not to be set aside simply because the Appellant at a Tribunal would have exercised a discretion differently if sitting in the Industrial Tribunal's chair, but in this case, for the reasons we have given, we find clear errors of law in the reasons given and for that reason, and that reason alone, we have considered what our own exercise of the discretion should be.

The second point made by Mr Freer, very rightly and properly, was that Orders of this kind should not be made unless they are required to dispose fairly of the substantive application or to save costs. It is not the latter limb on which Mr Carr relies, it is the former, and it is the former which we have taken into account, and it is on taking it into account that we have reached the conclusion that we have reached as to how our discretion should be exercised.

Finally, Mr Freer suggested that an Order of this kind would be disproportionately burdensome. We have taken that into account to the extent that we have confined the Order for discovery to the category which Mr Carr effectively tells us the employers are concerned about, and which seems to us to be a perfectly proper and limited category, and certainly it was not suggested by the Chairman nor is it, as we understand it, suggested by Mr Freer that the quantity of documents concerned in that category is particularly large or that the exercise of finding them is particularly difficult.

Those, therefore, in addition to the reasons we have given, are our grounds for the Order which we make.