United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J SWIFT (of Counsel) Messrs Freeth Cartwright Hunt Dickins Solicitors Norman House Friar Gate Derby DE1 1NU
For the Respondents	MR R GREENING (of Counsel) Messrs Beachcroft Stanleys Solicitors 100 Fetter Lane London EC4A 1BN


 


JUDGE JOHN BYRT QC: This is an interlocutory appeal against a decision dated 30 March 1999 of the Regional Chairman sitting at Nottingham, when he dismissed the Applicant's application for disclosure of specific documents.

The case itself is due to be heard next Tuesday, 4 May. The basis of the claim made by the Applicant is that he has been wrongfully dismissed. He, Mr Worthington, was a General Manager in the Respondents' large organisation. In June 1998 he attended a two-day brain-storming conference. Part of the purpose of that meeting was to develop a Business Plan for the next year. In attendance, there was a whole range of managers including Mr Worthington's own team of managers. As a result of that meeting, on or about 30 June, Mr Worthington produced a draft Business Plan of his own and submitted it. It would appear that it was not wholly acceptable to the Managing Director of the company, Mr Prescott. Accordingly, Mr Prescott went away and devised a Business Plan of his own.

Mr Worthington in due course asked Mr Prescott for a copy of that Business Plan and he received no answer in response to his request. However, it came to his notice, via a personal assistant of Mr Prescott's, that the Business Plan was available on computer, an open network system in another building. Mr Worthington therefore asked a secretary to get a copy of that plan. There was no difficulty in accessing the required information. There was no restriction placed on its availability. In this way, Mr Worthington obtained a copy of Mr Prescott's Business Plan. He then proceeded, without further approach to Mr Prescott, to circulate it to those people who had attended the two-day meeting.

In due course the matter was reported to Mr Prescott. He took the matter up with the Personnel Director, Mr Raby, and as a result of their initial enquiries, they decided that Mr Worthington was possibly guilty of gross misconduct and accordingly, the matter merited a disciplinary hearing.

Such a hearing was convened and conducted by Mr Somerville on 27 July. Towards the end of the hearing it became obvious to Mr Worthington that he was about to be dismissed for gross misconduct. A short adjournment was obtained and, as a result, he agreed with Mr Somerville that if he resigned the proceedings would be stopped and there would be no dismissal. Resign he did. His case is that he had no option but to resign; the only alternative option being his dismissal. He has now made a claim before the Employment Tribunal alleging that he has been constructively dismissed.

On 30 March Mr Worthington, or rather his legal advisers, asked for specific discovery of the three documents in question. One was his own Business Plan, the draft plan he devised on or about 30 June. The second was Mr Prescott's draft Business Plan, the one that he, himself, circulated on 6 July. As there is every reason to believe that a copy of that plan is no longer in existence, he has also specifically requested disclosure of Mr Prescott's final plan. The Respondents have objected to the production of all of them and Mr Swift, who has appeared on behalf of Mr Worthington, has said that if Mr Prescott's draft plan was available, he would not wish to see the final plan.

We understand from Mr Greening, who has appeared on behalf of the Respondents, that that draft plan is not available and accordingly, we are in effect faced with the application for Mr Worthington's first draft Business Plan and Mr Prescott's final Business Plan.

Mr Greening, in advancing his arguments opposing this discovery, takes first the technical albeit important point that the Regional Chairman, who made the decision on 30 March, has not been asked to give the Extended Reasons for his decision. In fact, on the contrary, the Chairman enquired of Mr Worthington's legal representative whether he wanted the Extended Reasons and the latter indicated that he did not need them.

Counsel for Mr Worthington, having seen the papers over this last weekend, has indicated it is necessary to have disclosure of these documents and therefore, very late in the day, this appeal has been mounted and it is too late first to get Extended Reasons from the Regional Chairman.

Mr Greening says that we cannot proceed because we do not have the Extended Reasons. The rules make plain that, for the furtherance of an appeal, the Chairman's Extended Reasons have to be part of the material available for the appeal hearing.

Mr Swift says there is power, under rule 39 of the Employment Appeal Tribunal Rules, enabling this Tribunal to waive any breach in its procedural rules where special circumstance exist. Sub-paragraph (2) sets out what those are. It says:

"The Tribunal may, if it considers that to do so would lead to the more expeditious or economical disposal of any proceedings or would otherwise be desirable in the interests of justice, dispense with the taking of any step required or authorised by these Rules, or may direct that any such steps to be taken in some manner other than that prescribed by these Rules."

And so in consequence, we have been asked to exercise the discretion we have, to waive this failure to obtain the Extended Reasons. Would it lead to a more expeditious or economical disposal of the proceedings or otherwise would it serve the needs and interests of justice to dispense with compliance? We think that in order to come to a determination upon that application, we have to look at the issues involved in this case and the time factors with which we are faced.

Of course, there has been the filing of the IT1 and the IT3. There has been an exchange of witness statements. None of these are pleadings but they set out the respective case of both parties.

The Respondents have the burden of showing that Mr Worthington was in fundamental breach of his contract such as to amount to a repudiation. The crux of their case is that he breached the confidentiality attached to Mr Prescott's draft Business Plan, first by obtaining it from the computer; thereafter by distributing it. They say it contained sensitive information which Mr Worthington knew or ought to have known meant it had to be produced to the right people by the right person, namely Mr Prescott, at the right time. That is the core of their case against Mr Worthington.

There has been some suggestion, during argument, that there is a second limb to the Respondents' case to the effect that it was the way in which he obtained the Business Plan and the manner in which he made use of it, which breached the trust and confidence which must exist between people at this level. Mr Swift in reply has argued that the IT3 and the Respondents' witness statements make plain that confidentiality of Mr Prescott's document only is at the core of the Respondents' case. Mr Greening has not disputed that that is so.

We think that if this issue, the confidential nature of these documents, is to be central to the debate before the Employment Tribunal, then the documents Mr Worthington seeks by way of discovery are essential to his case if justice is to be done. It is difficult for us to envisage how the case can be conducted adequately without both parties and, indeed, the Tribunal itself having access to what these documents do show.

Mr Greening has urged us that the Respondents can establish their case quite adequately without referring to the contents of these documents at all. For that reason they are not relevant. But one asks oneself, why should the Tribunal be faced with the prospect of having to glean the confidentiality of these documents and attempt to understand just how serious Mr Worthington's conduct is in obtaining and publishing Mr Prescott's plan from the surrounding circumstances when sight of the documents themselves would reveal the validity of the confidentiality claim.

Looking at the matter from Mr Worthington's point of view, one asks why he should accept the evidential terms upon which the Respondents wish to play the game, why he should sit down and listen to all the surrounding circumstances which it is said demonstrate just how sensitive he knew the document to be, when he himself is deprived of the opportunity, of merely referring the Employment Tribunal to the document itself to demonstrate that it was nothing like as confidential as the Respondents would make out.

There is one further argument which Mr Greening advanced, namely that the documents are commercially too sensitive to disclose. They would be of considerable use to market competitors. They would be of considerable benefit to potential customers negotiating with the Respondent company. For these reasons it is undesirable that these documents should be disclosed unless their materiality and relevance to the proceedings is substantial which they are not.

Without the Chairman's Extended Reasons we are of course in some but not insurmountable difficulty in deciding the basis upon which he made his decision. There is some evidence in the form of a letter from the Respondents' Solicitors detailing what happened before him. This suggests he thought these documents were of only marginal relevance. It would seem that Mr Worthington's lawyers do not wholly agree with the Respondents' Solicitors' account of the proceedings and the Chairman's alleged reasons.

We think it is best to judge this matter on the basis of what we may safely assume to have been the case, namely that to have come to the decision he did, the Chairman must have thought these documents had no, or only marginal relevance. Either way, we think that that is an underestimate of the central importance of these documents. We think he could only have come to the decision he did by exercising his discretion in accordance with wrong principles. We think, with respect, that in so doing he erred in law.

In all the circumstances, therefore, we allow this appeal. We direct that the three documents in question be disclosed (I will talk about the time limit in a minute) but we would wish to make that order conditional upon Mr Swift being able to give us an undertaking, on behalf of his client, that the contents of the documents will not be divulged to anybody else outside the Tribunal room and that is the order of this Tribunal.

In conclusion, having regard to the proximity of the date of the hearing, the significance of the documents concerned in seeing that justice be done, and a saving of costs, we exercise our discretion under Rule 39 so as to enable this appeal to be heard notwithstanding the absence of Extended Reasons.