United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M O'CONNOR (Representative)
For the Respondents	THE RESPONDENTS NEITHER PRESENT NOR REPRESENTED


 


JUDGE PETER CLARK:

1. The appellant, Ms Julie Thomson, commenced these proceedings by an Originating Application presented to the London (North) Employment Tribunal on 7th September 1998. She there complained of unfair dismissal, sex discrimination and breach of contract against the respondents, Panasonic, by whom she had been employed as Corporate Accounts Manager from 13th September 1993 until 20th June 1998. The claim was resisted.
2. The matter came on for a substantive hearing on 31st March and 1st April 1999. The case not then having been concluded two further days of hearing took place on 6th and 7th July. The respondent went first and their evidence was completed on 7th July, although further hearing were to be necessary and on 7th July the tribunal gave the following directions, confirmed in a letter dated 16th July:

"(1) the Applicant is directed to disclose to the Respondent all prepared witness statements not later than 14 days from 7 July 1999; and

(2) this matter is adjourned part-heard and will be resumed as listed at 10.00 am on Tuesday 19 October 1999 and Wednesday 20 1999."

3. Upon receipt of that letter Mr O'Connor, an Employment Consultant who has advised the appellant throughout and appeared on her behalf below, wrote to the tribunal on 21st July. He had, at the hearing on 7th July indicated that he wished to consider an appeal to the Employment Appeal Tribunal against the tribunal's order that the appellant disclose to the respondent her witness statements.
4. By a reply dated 29th July the Regional Chairman granted an extension of time to 21st August to comply with the Chairman's direction. The appellant was told that if she wished to appeal the tribunal's direction she should do so immediately.
5. Consequently a Notice of Appeal against that direction dated 4th August was duly lodged with the EAT, accompanied by an affidavit sworn by Mr O'Connor on the same day. The appeal is resisted, but the respondent does not appear today. We have taken into account the respondent's written answer to this appeal.
6. In his affidavit Mr O'Connor states that a directions hearing was convened in this case before a Chairman for 15th December 1998. On the day before that hearing the respondent's solicitor, Ms Davies, telephoned Mr O'Connor, stating that she did not intend to appear at the directions hearing and asked whether direction could be agreed between the parties. Amongst other things, the parties' representatives then agreed that they would prefer not to exchange witness statements in advance of substantive hearing.
7. At the directions hearing the Chairman, not being the Chairman who sat on the substantive hearing, was informed of that agreement and he directed that witness statements should not be exchanged before the hearing unless otherwise agreed. No such subsequent agreement was reached.
8. When the matter came on for hearing on 31st March and 1st April the respondent called two witnesses, Mr Lamond and Mr Mancey. Copies of their witness statements were initially collected by the tribunal clerk together with all other witness statements in the case and handed to the members of the tribunal before the beginning of the first hearing day. As each witness came to the witness chair, Mr O'Connor was given a copy of that witness's statement. The witnesses then read out their statements.
9. At the resumed hearings held on 6th and 7th July, the same procedure was followed in respect of two further witnesses called by the respondent, Ms Grant and Mr Brown.
10. The respondent's evidence concluded at about lunchtime on 7th July. The Chairman then interposed a witness, Mrs McDonald, who had attended on a witness order obtained by the appellant. No witness statement had been obtained from her. Her evidence took up the remainder of the afternoon.
11. At that stage two further dates, 19th and 20th October, were nominated for the further hearing of the case.
12. We then take up the story from Mr O'Connor's affidavit where he says this:

"7. … The Chairman then said that, since the tribunal had copies of the Applicant's witness statement (and those of other witnesses she intended to call), the tribunal would read them before the case recommenced so that the Applicant could move on to supplementary questioning by myself [Mr O'Connor] prior to cross examination by the Respondent. At this point, the Respondent's solicitor, Ms Winter, mentioned that this would place her at a disadvantage since she would not have seen the Applicant's witness statement. The Chairman expressed some surprise that this had not been disclosed. I advised him that this was because of the agreement between the parties and the Direction given at the Directions Hearing in December and pointed out that the Respondent had conducted its own case in accordance with those Directions.

8. At this point, the Chairman directed me to disclose the witness statement of the Applicant and her other witnesses to the Respondent in advance of the reconvened hearing on 19th October 1999. I objected to this on the basis that it was prejudicial to my client and advantageous to the Respondent, who would have approximately three months to prepare its cross examination, knowing in advance the evidence which would be lead in chief – an opportunity which had not been available to the Applicant. Submissions were made to the tribunal and, after a short adjournment, the Chairman directed that disclosure was required."

13. In advancing this appeal against that direction, Mr O'Connor has referred us to the relevant provisions of the Employment Tribunal's Rules. Rule 9(1) provides:

"9.-(1) The tribunal shall, so far as it appears to it appropriate, seek to avoid formality in its proceedings and shall not be bound by an enactment or rule of law relating to the admissibility of evidence in proceedings before the courts of law. The tribunal shall make such enquiries of persons appearing before it and witnesses as it considers appropriate and shall otherwise conduct the hearing in such manner as it considers most appropriate for the clarification of the issues before it and generally to the just handling of the proceedings."

Rule 13(1) provides:

"13.-(1) Subject to the provisions of these rules, a tribunal may regulate its own procedure."

Finally, Rule 16(1) provides:

"16.-(1) A tribunal may at any time, on the application of a party or of its own motion, give directions on any matter arising in connection with the proceedings."

14. Mr O'Connor accepts on the authority of a decision of the EAT in Badii v Bournemouth University and others (EAT/1237/96 – Unreported) Lindsay J presiding, that the Employment Tribunal has power to order the exchange of witness statements and to order sequential exchange.
15. In the letter from the Regional Chairman in this case reference was made to that authority and it is relied on by the respondent in answer to this appeal.
16. However, the question before us is whether or not in exercising its undoubted discretion, the tribunal, and in particular the Chairman, has reached a conclusion to which no reasonable tribunal or Chairman properly directing it or himself could come.
17. Again, Mr O'Connor accepts that that is a high hurdle for him to overcome. However he puts his submission attractively on the basis of the need to ensure even-handedness between the parties.
18. The position here is that the parties agreed that there should be no exchange of witness statements. Pausing there, we find that in this day and age an odd arrangement to reach between the parties, and indeed, it may be said, that the Chairman who dealt with the original directions hearing might have considered overriding that agreement and insisting on exchange. Nevertheless, that was the basis on which the parties proceeded and that was the order which the original Chairman made. It follows that when the matter came on for hearing over the original four days the tribunal had seen the witness statements in advance of the witnesses coming into witness box, but Mr O'Connor had not.
19. It seems that the Chairman presiding over the substantive hearing was surprised to learn that there had been an agreement not to exchange witness statements. However, he appears to have thought it right to direct that there should be a change in the way in which the evidence was presented in the case, so that the appellant was required to disclose her witness statements in advance to her opponent, something which by agreement had not been reciprocated when the respondent's witnesses were giving evidence.
20. We have taken into account the respondent's answer in the absence of oral submissions on their behalf, and at paragraph 5 of the grounds relied on in the answer for opposing the appeal, this is said:

"5. Further there is no advantage to the Respondent in the disclosure of the Applicant's prepared witness statements now, other than the fact that the prospect of the hearing being part heard for a third time is significantly diminished, which is of equal benefit to the Applicant. Preparation of cross examination of the Applicant and any additional witnesses, whose identity is already known to the Respondent, does not require disclosure of their witness statements, and this is therefore not a relevant consideration in deciding whether the Tribunal has properly exercised its discretion under the Rules."

21. In these circumstances, it seems to us where the respondent accepts that there is no need for the appellant to disclose her witness statements to the respondent and in circumstances where an agreement was reached between the parties as to the way in which the giving of evidence was to proceed, that agreement having been enshrined in a direction given at the earlier directions hearing, the Chairman's order that the appellant disclose her witness statements before the resumed hearing does not amount to a proper judicial exercise of discretion. The need for even-handedness is a relevant factor which, it seems to us, the Chairman has overlooked in making the order that he did. Failing to take into account a relevant factor is a ground upon which we can properly interfere with the exercise of a tribunal's discretion.
22. We shall do so in this case. In view of the respondent's position to which we have referred, we shall direct that the appellant is not required to disclose her witness statements in advance of the next hearing. In these circumstances, the appeal is allowed.