United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR A EATON-HART (of Counsel) Messrs Ford Simey Daw Roberts Solicitors Hertford House Southernhay Gardens Exeter Devon EX1 1EJ
For the Respondent	MR M FORD (of Counsel) Messrs Crosse & Crosse Solicitors 14 Southernhay West Exeter EX1 1PL


 


MR JUSTICE MORISON (PRESIDENT): This is an interlocutory decision of an Employment Tribunal which is the subject matter of the appeal. It relates to disclosure of documents.

The circumstances giving rise to the dispute between the parties on discovery may be shortly stated. The Appellants are the Governors of Exeter School, who are the Respondents to proceedings brought against them for constructive dismissal by a former employee of theirs, Valerie Ann Wright. Essentially what she says is that she participated in an enquiry which was set up by the Governing Body of the School into the conduct of the headmaster in relation to one of his sons at the school and the examination course work which that boy had done, whilst a pupil at the school. In short, it was being suggested that the headmaster had effectively done the boy's work for him so as to procure him a better result from the Examination Body than he would have achieved if he had been unassisted.

When the allegation had been made, and it should be stated that it was not initially made by Mrs Wright, the Governing Body set up an enquiry and in due course Mrs Wright was invited to give evidence to it. I think she prepared a statement for this purpose and she was interviewed by the enquiry team.

As we understand it, for the purposes of these proceedings, that is for the purposes of her proceedings before the Employment Tribunal, it is not suggested by the school that when she gave evidence she was giving evidence in any way maliciously or otherwise than honestly, and reasonably believing that what she was telling the enquiry was true. Her evidence related to, I think, the typing of documents which might have been of some significance and in whose handwriting various pieces of material was. In due course, the school got in touch with the Examining Board sending them their own results of the enquiry and, as we understand it, the Examining Board itself carried out an enquiry.

In due course, at the beginning of the September term, Mrs Wright returned to her duties and it is her case (to put it quite colloquially) that she was picked on and victimised as a result of her participation at the enquiry and being willing to give evidence against the headmaster. She says that she was given "the cold shoulder", isolated, made to feel that she had done something wrong, culminating in a row near Christmas time with the Burser of the school and, no doubt, there will have to be evidence about all those matters. She says that she was put into a position, as a result of what happened during that term in particular, whereby she felt she had no alternative but to leave her employment. Hence her application for constructive dismissal.

When carrying out its investigation the school had promised people confidentiality when they gave evidence to it. It is that promise of confidentiality which has caused a certain amount of difficulty for the school, over the way in which they have dealt with discovery. It is their position that documents should not be disclosed voluntarily by the school unless ordered by the Employment Tribunal or by this Court, having regard to the promise of confidentiality which was made.

One of the difficulties that has been caused in this case is the defining of the issues between the parties. The Employment Tribunal on 17 February 1999 identified two relevant points:

"First is the headmaster's behaviour and that can be covered by her evidence. Second there is the question of the adequacy of the investigation arising. Her claim on that is that it was not properly investigated and that is part of her argument that there was a breach of the obligation of trust and confidence. That is the basis of her claim for constructive dismissal."

What happened was that the Tribunal Chairman, having directed himself to the decision in Science Research Council v Nasse [1979] 3 All ER 673, particularly at page 680, came to the conclusion that he not only had to be satisfied that the disclosure was relevant, but that it was also necessary to do justice between the parties. He was then sent, at his request, by the school a complete file of all the documents that they had in their custody, possession or power relating to the matters in issue so that he, himself, could look at them to decide which of them was necessary for the fair disposal of the litigation. In due course he produced a schedule identifying which document in the file should be disclosed. It is against that order that the appeal has been lodged.

It is the Appellants' contention, in essence, that in a constructive dismissal case it is for the employee to show what he or she knew at the time, and which led her or him to walk off. She cannot see, or be allowed to see in the discovery process, material of which she was unaware at the time when she left her employment. Thus, for example, if the investigation was carried out in a way which was unsatisfactory, that is not a matter on which she can rely. If there are documents which make that case out of which she was not aware when she left her employment, they have no relevance to the issue.

It was suggested to us that there was a risk that this case would degenerate from an examination of the Applicant's claim for unfair dismissal, into a mud-slinging exercise in which the Tribunal will be invited to conclude that the headmaster "did it", and that the school tried to cover it up, both suggestions, of course, being denied, if they are being made. Counsel is plainly worried that disclosing unnecessary documents will encourage a wider examination of matters, which would be unnecessary to the determination of the Applicant's rights, and whose only consequence could be to cause damage to the school and its pupils.

We quite understand the concern expressed on the Appellants' behalf. These proceedings must be confined to the relevant issues. That is not to say that we suspect that Mrs Wright is engaged in a mud-slinging exercise, but it obviously is a matter of concern that the proceedings should not deteriorate, as I have indicated.

For her, it was suggested that it was the responsibility of the employers to carry out a proper and full investigation, in relation to a matter of public interest, and that they owed her a duty, as she was a participant in that investigation, to take her evidence seriously in that context; and that if they failed to pursue a proper and full enquiry it would be a breach of her contract. There was also a suggestion which is, I think, of academic interest only, that it was relevant to the breach of her contract as to whether the headmaster had, or had not, been guilty as alleged.

For our part, we are of the view that this position of the Applicant is similar to that of a person who is engaged in what is colloquially called "whistle-blowing". Although she was not the originator of the complaint, she certainly was asked to participate in a procedure which forced her, as we see it, to have to give evidence and take a position about the headmaster who would have been in her direct line of command. She was thus put into a position where she was having, one could put it, a conflict of loyalties; a desire to be loyal on the one hand to those whom she served, and a desire to be frank and helpful to the investigation which she had not been responsible for.

Whether putting an employee into that position is itself a breach of contract is something which may need to be examined by the Employment Tribunal in due course, but it does not seem to us that her position can be made better or worse, according to whether the headmaster did or did not do what he was alleged to have done. It seems to us that the awkwardness of her position is not contingent on that point. On the other hand, it does seem to us to be arguable that she had a reasonable expectation, and was entitled as a matter of contract to expect, that if she was invited to participate in an investigatory process, the school would carry out a proper and thorough process of investigation.

In any event, it seems to us, that the events which occurred after September are going to be of crucial importance to the determination of liability in this case. Where somebody has been put into the position of this Applicant, and where the employers are satisfied, as we think they are, that she was acting honestly and reasonably in the way she approached the enquiry, it seems to me arguable that the duty on the employer thereafter, having put her into this position, is to give her the support which "whistle-blowers" or people akin to that need. And one of the questions before the Employment Tribunal is whether she was given full and proper support when she returned to work between September and Christmas.

Against that background, it seems to us, that the decision of the Employment Tribunal cannot be faulted. We do not accept that merely because she was unaware of a document, it cannot be relied upon by her in support of her complaint of unfair constructive dismissal. It seems to us that she is entitled to see documents which may go to support her belief, which she had at the time, that her evidence had not been taken seriously at the enquiry for whatever reason.

The learned Chairman has been through the file conscientiously and carefully and has excluded much of the material within it, but has confined himself to matters which he would believe to be necessary for the fair determination of the issues between the parties. That being so, it is sufficient for us to say that the learned Chairman has carried out his legal duties in a way with which we cannot interfere. He is the case manager of this difficult piece of litigation. He has made a decision about discovery with which, not only do we not disagree but actually agree, and in those circumstances the appeal must be dismissed.

We would only express the hope that the parties could find a way of resolving their differences which did not involve either of them having to go through the painful process of litigation. Mrs Wright has worked at the school for some time. No criticism could be made of what she did in relation to the enquiry. She has received, by working at the school, the benefit of her two sons being given advantageous terms of education. The loss of her job therefore has come at a bad time, bearing in mind her age, and it obviously has had a considerable effect on her. I would have thought (and I think I express the view of the panel) that the Governing Body of the school should now look at her case and see whether a hearing is necessary.