United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR FRANK IRONS (Representative) Employment Law Services Laburnum Cottage Tai Nant Penycae Wrexham LL14 1UG
For the Respondents	THE RESPONDENTS NEITHER PRESENT NOR REPRESENTED


 


MR JUSTICE KIRKWOOD : This is an appeal on an interlocutory point concerning discovery. It is the appeal of an employee, Mrs Jones, whose has a complaint pending before the Industrial Tribunal at Liverpool of unfair dismissal. Mrs Jones' unfair dismissal claim arises out of circumstances that are said by the respondent to it to have been a redundancy.

Mrs Jones appears before us today with representation by Mr Irons, Personnel Consultant. The respondents, Hill Dickinson, a firm of solicitors, do not appear. The filled in a respondent's answer which is in very short form. They only filled that in after default and being given one day to lodge it to prevent their being debarred from defending the appeal.

We note, in passing, that the respondent firm of solicitors seems on the papers we have seen to have adopted a policy of non-co-operation in these proceedings which I say, for my own part as a Judge, I find ill becomes them as solicitors to the Supreme Court.

In Mrs Jones' complaint she outlines that she was a trainee legal executive, a trainee but a person of considerable experience, formerly in the Family Law Department of a firm called Wayman Hayles. There, the partner she worked to was Sarah Williams, and under that regime, according to her claim, she had considerable freedom to work in her own way. She looked after a number of clients new and old, and did pretty well everything for them that a solicitor would do for them in the course of their legal affairs. I stress that that is what we take from her complaint, because Mrs Jones' case has not yet been adjudicated upon by the tribunal.

In December 1996 (and again this is assuming facts which have not been tried) Miss Williams left and a new solicitor, Miss Hassall, came in. She was a person with a very different style of work and over time things changed very much.

On 1st May 1997 the firm of Wayman Hayles became merged with Hill Dickinson. The new firm worked towards its application for a Legal Aid Franchise. In due course, Mrs Jones seems to have been working on that alone and not with her group of clients.

Appraisals of the work of the various departments in the firm were undertaken. In due course Mrs Jones was told her post was redundant. It was said that the department was over-staffed, though Mrs Jones would point to the arrival in the department of a trainee solicitor who had been re-assigned to the Family Law Department at the time that it was being said that Mrs Jones' job was redundant. It was also apparently said that there was a diminution in the work for the Family Law Department.

Mrs Jones did not accept her position was redundant and that was all part of the circumstances that led her to make her claim. Her claim was made to the Industrial Tribunal on 6th May 1998.

On 21st May 1998 Mr Irons wrote on behalf of Mrs Jones to the respondents, Hill Dickinson, what looks to be a careful letter, asking for further and better particulars and discovery of documents. Hill Dickinson appear to have ignored that request.

On 26th June 1998 a letter went from Mr Irons to the Industrial Tribunal enclosing a copy of that letter of 21st May and asking for an order for disclosure and discovery of the information requested or such of the information as the tribunal considered appropriate. In that letter Mr Irons noted that there was hearing fixed for 17th July 1998.

On 29th June 1998 the Industrial Tribunal, without holding any hearing, wrote by its Regional Secretary to Mr Irons in these terms:

"... your letter dated 26 June 1998 which has been referred to a Chairman of the Tribunal.

He has instructed me to say that he refuses your request for further and better particulars as he does not think that you need them for the preparation of the case. Indeed, the Chairman is not convinced of the relevance of any of the particulars requested."

It should be said that the letter of 21st May 1998, asking for particulars and discovery, contained in some of its paragraphs what were unquestionably requests for discovery of documents. As to other paragraphs, it was debatable whether they were for discovery of documents strictly speaking or for further and better particulars strictly speaking; but the Chairman did not deal with those paragraphs asking for discovery of documents in his adjudication upon the letter of 21st May and 26th June 1998.

The Chairman did apparently however make an order in these terms:

"Unless any party shows cause to the contrary within 7 days, the following directions will take effect:

1. A written statement of the evidence in chief of each witness shall be prepared for each witness with a view to its being read at the hearing; at the hearing there shall be three copies of each such statement available for the Tribunal and one for each of the other parties.

2. A bundle of documents, indexed and paginated, shall be agreed at least 7 days before the day of hearing; at the hearing there shall be four copies of each bundle available to the Tribunal.

3. Any application for an order for discovery or further particulars shall be made within 21 days of the date of this letter.

After the expiry of 21 days, the case will be listed with a time estimate of one day."

It does not seem to us that that order really begun to meet the situation. It provided that 21 days from 29th June a date would be fixed for the hearing; seven days before the date fixed for the hearing a bundle of documents was to be agreed; but no means of knowing that material documents were to be in that bundle or what was to be in the bundle at all, unless an application for an order for discovery was made within 21 days of 29th June. It was precisely for an order of discovery that Mr Irons had written on Mrs Jones' behalf three days earlier.

It seems to us to be a very curious way to approach the question of preparation for a hearing in which documents are undoubtedly going to be of significance. Indeed, it is a thoroughly unsatisfactory way of preparing for a hearing.

Mrs Jones has a case for the production of documents. She has a case for the production of some, anyway, of the documents for which she had asked and which had been refused to her by the respondent in not dealing with the letter at all and those are matters to which, in our judgment, she was entitled to look to the Industrial Tribunal for help by means of an order.

The right course in dealing with this appeal is for us to remit this case to the Industrial Tribunal with a clear indication that a directions hearing should be appointed at which the parties are to attend; at which the issues in the case are to clarified; and, at which the question of documents relevant to the determination of the issues are to be identified and an order for the production of those documents made, unless they are produced voluntarily within a very short time of that directions hearing.

We shall remit the case to the Industrial Tribunal for those purposes and, it follows that the appeal is allowed to that extent.