United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON
For the Respondents	MR J QUIGLEY (Solicitor) British Medical Association BMA House Tavistock Square London WC1H 9JP


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal against an interlocutory decision of an Industrial Tribunal Chairman sitting alone. Following a two hour hearing she made various orders which are set out in a letter dated 17th March 1998. That letter is signed by an administrative officer who is employed by the Employment Tribunals Service. It is a document which is not signed by the Chairman and does not identify the Chairman. Paragraph 2 of the letter indicates that the tribunal was of the view that internal memoranda which were referred to as item 6 in instructions to Counsel to advise, those instructions being dated 28th June 1996 were not in any way relevant to the issues before the Industrial Tribunal and, accordingly, they rejected Dr Ilangaratne's application for disclosure of those documents. He had already in his possession both the instructions themselves together with Counsel's opinion and the other enclosures referred to in the instructions. In addition, he had applied for Further and Better Particulars of the respondent's case, the respondent being the BMA, and there was an issue as to whether leave to amend should be granted and they were granted leave to amend within 14 days, and various other orders were made to enable the case to be brought on reasonably speedily for a full hearing.

Dr Ilangaratne has appealed that part of the order which relates to the discovery application in relation to the internal memoranda referred to. He says:

"Counsel was instructed on my behalf through the BMA and as a result I was the client and as such manifestly entitled to see all documents which were supplied to my Counsel to enable her to give me advice."

He correctly refers to the guidance which is given relating to the professional conduct of solicitors and to the examples given of the documents which the client is entitled to have. One of the examples are instructions and briefs to Counsel and "copies of letters written by you to third parties if contained in the client's case file and used for the purpose of the client's business".

We have to say that we think the submission which he makes on that issue is correct. He is entitled, as of right, as it seems to us, to see those documents. But the question that arises in this case is whether those documents are to be disclosed through the discovery process and that raises a different question, namely as to whether those documents are relevant to the issues in the proceedings.

The proceedings are complex, in the sense that there are a variety of claims being advanced by the applicant, Dr Ilangaratne. He is alleging complaints effectively under three heads. He says, firstly, that he has been unlawfully disciplined by the BMA (a trade union) and he is entitled to complain about that. He says, secondly, that he has been discriminated against on the grounds of disability. Dr Ilangaratne worked as a medical officer at a privatised prison and retired through ill-health and, he says, due to stress at work and a particular incident that occurred whilst he was working at the prison. He says that he is disabled within the meaning of the Disability Discrimination Act 1995. He says that he has been discriminated against by the BMA because of his disability in three respects, firstly they improperly withdrew legal assistance from him on 17th July 1997; secondly, they improperly concealed from him Counsel's advice obtained on his behalf, that is the advice to which we have referred; and thirdly, that they had made inappropriate remarks in instructions to a different Counsel.

He puts the case for discrimination on the basis that he has been less favourably treated by his union on ground of disability; and secondly, that they have broken their duty to make adjustments; and thirdly, that they have victimised him. The protected acts on which he relies are firstly, a complaint to the BMA on discrimination which was made in 1996; and secondly, as a protected act, the complaint which he made, which he said the BMA were aware of, to the Commissioner of the rights trade union members.

In relation to his complaint of race discrimination, the applicant being of Sri Lankan racial origin, he says firstly, that they failed to advance his claim for criminal injury compensation by reason of his race. He relies on each of the three acts of disability discrimination which he alleges as also acts of racial discrimination, and in addition, he alleges that the BMA wrongly withheld from him information about the existence or composition of a sub-committee, and he says, effectively, their treatment of him amounts to unlawful segregation.

It is not for us to make any comment about the merits of the complaint, but it does seem to us that really what is in issue in this case is essentially the reasons for the actions taken by the BMA and their motivations in so far as there is a claim for victimisation. What the BMA did at any particular time should not, we think, be a matter of dispute since there are documents available to evidence those things. Therefore, it seems to us, the hearing should be in relatively narrow compass.

Because Dr Ilangaratne is only complaining, in relation to Counsel's opinion, about the improper concealment of it, it seems to us that technically on the question of relevance he is not entitled to those documents because they are not relevant to any of the issues in the proceedings. We ourselves have looked at the internal memoranda and have been unable to detect anything which was likely to be of assistance to him applying the Peruvian Guano test to which Dr Ilangaratne has drawn our attention.

During the course of argument Mr Quigley has indicated that the BMA would be prepared to make available to Dr Ilangaratne today the internal BMA memoranda without prejudice to their contention that they are not disclosable documents for the purposes of these proceedings.

Accordingly, in the light of that statement, there is no need for us to make any order on this appeal. But we wish to add this. The decision of the learned Chairman was a judicial decision. It seems to us not to be satisfactory that an order made a judge should be contained in a letter sent by an administrator and unsigned by the judge; indeed the judge is not named in it. It seems to us that in future all judicial orders made by Industrial Tribunal Chairmen whether of an interlocutory nature or otherwise, should identify him and should be signed by him. Because this is a matter of some importance, I direct that this part of my judgment be sent to the President of the Industrial Tribunals as soon as possible, because we do not wish to see this practice continuing any longer.

We are grateful to Mr Quigley on behalf of the BMA and to Dr Ilangaratne for their help this morning.