United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT NEITHER PRESENT NOR REPRESENTED
For the Respondents	THE RESPONDENTS NEITHER PRESENT NOR REPRESENTED


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal against the refusal of an Industrial Tribunal Chairman to order further and better particulars and discovery which had been requested by the applicant of the respondents.

The claim which the applicant makes is of unfair dismissal. As we read the IT1 he is saying that if he was dismissed by reason of redundancy the employers applied to him the wrong criteria; that there is an issue as to whether his location, that is where worked, was a problem in the redundancy, if there was such. He says that he was not redundant at all because his position still exists; and there was, in any event, another job available for him; and he found it difficult to understand how it came about that he lost his job.

The employers, who are represented by organisation whom we will refer to as Peninsula, asserted in their IT3 that the applicant was dismissed by reason of redundancy as a result of the employer's requirements for staff of his kind being reduced from five to four. They specifically allege that compulsory redundancies became necessary, and that after applying a set criteria to each employee, the applicant was dismissed by reason of redundancy, and that no suitable alternative position was available to him.

Redundancy dismissal cases are an example of those cases where the facts lie very much within the employer's own province. An employee is unlikely to have access to material which may well have a bearing on whether (a) he was genuinely redundant; and (b) if he was, whether he was fairly treated.

Accordingly in a case such as this it would be right, in principle, for the former employee to have available to him, before the hearing takes place, as much of the written material as is relevant to the issues between the parties; together with an elaboration of the employer's case if it has been not elaborated in the IT3. Otherwise, there is a risk of an injustice being done to the applicant because he is taken by surprise at the hearing and is having to deal with documents which he may not have seen before.

In this case, the applicant has the advantage of being represented by solicitors. No doubt they were aware of the dangers of trial by ambush, and sought to avoid it's worse features by a request for particulars and discovery. Some of the 12 particulars requested were plainly ones which they were entitled to have answered, namely, particulars of the selection criteria referred to by the employer's in their IT3 which they say were applied to each employee in the pool; particulars of the size of the pool from which the selection for redundancy was made; and the names of the individuals in the pool. In our view they were also entitled to information relating to the before and after position in the relevant department so that they could make all the necessary enquiries before the hearing takes place to ascertain whether the employer's case that there was a genuine redundancy situation leading to the applicant's dismissal is well-founded.

The learned Chairman who has considerable experience in the Industrial Tribunal and for whom the Employment Appeal Tribunal has respect, concluded that the application for particular and discovery was far too wide, and when the employee's solicitors sought to justify the full request, he was of the view that really the solicitors were asking for more than they were entitled.

This case is due for hearing on 1st May 1998. It seems to us very clear in this particular case that the learned Chairman will wish to invite the parties to a direction hearing. It may well be that he will take the view that the hearing which is fixed for 1st May can be used for the purposes of giving further directions to the parties. Plainly the employee needs to have in advance of the substantive hearing some of the particulars which they have sought and the documentation to which I have referred. This would be a case, probably, but that is a matter for the Chairman himself, where it would be of assistance if witness statements were exchanged in advance of the hearing.

On the assumption that the case will not proceed on 1st May otherwise than for the purposes of dealing with the directions, we are not prepared to interfere with the decision which was made by the learned Chairman in the exercise of his discretion. We can quite well understand why it was that he considered the request to be too wide. The directions hearing will enable him to go through those requests with the parties to see if common ground cannot be found in relation to some of them, and then he would be entitled to make any other interlocutory orders of the sort that we have referred to.

It seems to us, therefore, that we should formally dismiss this appeal on the basis that I have indicated. We are confident that the learned Chairman will ensure that the matter eventually proceeds to a substantive hearing in good order.