United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR K GLEDHILL (of Counsel) Messrs Nicholas Green 12 Carlton Street Halifax HX1 2AL
For the Respondent	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT


 


MR JUSTICE CHARLES: We have before us this morning an ex parte application in the case of Messrs Green and Goodwin, who practice together as Solicitors, against Mrs Ahmad. The underlying dispute is one in which Mrs Ahmad alleges race and sex discrimination against the Appellants in the appeal before us, who in the earlier judgment I gave I called "the employers".

1. When this matter was last before this Tribunal we made an order that the particulars and disclosure ordered by the Employment Tribunal were to take place, unless the clients of the employers made an application to us on or before 19 July. An application was made on that date. In form it was an application not by clients of the employers, but by the employers themselves.
2. Today, Counsel (Mr Gledhill) who appeared before us on the last occasion for the employers, has confirmed to us that he is acting through the employers, who as I have said are solicitors, for the clients and that the conflict of interest that exists between the employers and the clients has been explained to both of them and they are both content that the employers should act for the clients and be represented by Mr Gledhill.
3. Having regard to that confirmation we have treated this application as one by the clients and will give, if it is necessary, an appropriate extension of time so that that application can be treated as having been made to us today on behalf of the clients in compliance with our original order.
4. In support of that application Mr Gledhill put in a helpful skeleton argument, some of which bore a striking resemblance to the skeleton argument that he put in on the first occasion, and raised points that had been argued on the first occasion.
5. In paragraph 2 of my earlier judgment (which should be read with this one) I recorded that it was accepted that the reason relied on by the employers for withdrawing the offer of employment to Mrs Ahmad, and thus the information given to them by the clients, was an issue in the proceedings before the Employment Tribunal. My recollection is that that was accepted by Mr Gledhill. In my judgment he was plainly right to so accept that point.
6. However in his skeleton before us Mr Gledhill has argued again that, in effect, the application for particulars and discovery relating to the information given by the clients to the employers is a fishing expedition, or an exercise in what is sometimes called "Micawberism". We again reject that argument.
7. Firstly, in our judgment, and a basis upon which we decided the case last time, the fact that the employers, as the Respondents in the Employment Tribunal, have in their defence advanced the reason why they took the course of action they did in withdrawing their offer to Mrs Ahmad of employment has the consequence that this reason is now in issue in the proceedings. Whatever the defects in the original assertion of the claim may have been, in our judgment the employers were right to advance and put in issue their reason in their defence because:

(a) in our judgment looking at the IT1 it is clear that it raises claims of race and sex discrimination and it therefore triggered the response from the employers of putting in the reason why they took the course of action they did in withdrawing their offer to Mrs Ahmad of employment, and

(b) in any event, it seems to us, that it would not take great ingenuity from a lawyer knowledgeable in this field to plead a case by reference to a hypothetical comparator.

8. Having rejected the arguments advanced on behalf of the employers that the information the Employment Tribunal had ordered to be provided was irrelevant the purpose of the order we made last time was to enable the clients to assert why either his, her of their identity should not be revealed, or why parts of the information provided were irrelevant and thus could be blocked out.
9. The clients' position has now been explained to us by Mr Gledhill, who has also provided us today with a signed statement which identifies (a) the clients, and (b) the individual at the clients, who provided information to the employers on an informal and confidential basis. We are therefore now in the position of knowing the content of that information. That knowledge confirms the view expressed both today, and on the last occasion, that it is relevant information which should be particularised and disclosed.
10. We will therefore be ordering that the identity of the clients and the content of the information be particularised and disclosed in these proceedings.
11. An additional point arises as to whether the individual at the clients, who provided the information to the employers on an informal and confidential basis, needs to be disclosed. We can see that such disclosure could cause difficulties for Mrs Ahmad, the employers, the individual and the clients.
12. At this stage of the proceedings, so long as the content of the information and the identity of the clients is disclosed, we do not see that it is necessary for the identity of the individual at those clients who provided the information to be disclosed.
13. A disclosure without the identity of that individual being stated would, in our judgment, properly inform Mrs Ahmad of the nature of the case she has to meet, or put in an another way would enable her to properly prepare her case as to why it is, she says, there is evidence of discrimination or that discrimination should be inferred from the primary facts.
14. That is not to say that if the matter has to come on for hearing that the identity of that individual will not have to be revealed and that person will not have to give evidence.
15. Much will depend on the way in which the respective parties develop this case and nothing we say today is to be taken, in any way, as an indication that the Employment Tribunal should not (at a directions hearing or at the substantive hearing) direct that the identity of the relevant individual at the clients be disclosed. In our judgment this is a matter for them in their discretion to ensure that the hearing before them is dealt with fairly.
16. However, at this stage, for the reasons we have given, we are minded to protect the identity of that individual and therefore to order that:

(a) the particulars ordered by the Tribunal be given without identifying the individual who gave the information on an informal and confidential basis, and

(b) the disclosure ordered by the Tribunal, which is an attendance note, be provided in what was described in the Matrix Churchill enquiry as a redacted form, which simply means in an edited form, to remove the identity of the individual from the document.

17. In addition we will direct that the employers put in a statement by the Director of the clients who, because of the possibility of an appeal we have not identified in this judgment but the employers know who we are talking about. What we have in mind, so far as that statement is concerned is that it will be based on information and belief (but will not identify the individual who gave the information to the employers) and will be a confirmatory statement so that Mrs Ahmad will be aware that the clients are confirming that the information that the employers say was given to them was indeed given to them, and that it reflects the position of the clients.
18. Finally, and although it is obviously not a matter before us, given the issues as to confidentiality and the potential repercussions that further disclosure could cause and, in particular, the fact that this litigation is between solicitors, we express the hope that the parties will feel it appropriate, in the light of the disclosure we have ordered, to at least meet and discuss whether matters can be resolved by agreement.