United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR EUGENE WOJCIECHOWSKI Representative 28 A Middlefields Twyford Berkshire RG10 9DG


 


JUDGE J ALTMAN

1. This matter has been listed today, initially, as an appeal from the refusal of the Employment Tribunal to postpone the hearing of the main complaint of the Appellant, currently listed for 8 January, so that an Interlocutory Appeal which was listed for 1 March could be dealt with.
2. The Respondents have complained that they have had too little notice to be able to participate, but we are satisfied that the interests of justice require the matter to be dealt with today. This is the last day upon which the Employment Appeal Tribunal is sitting before the hearing of 8 January, and if we do not proceed, we will defeat entirely the Appellant's opportunity for an appeal.
3. However, the reason for the application for the adjournment of the Tribunal hearing by the Appellant was the earlier refusal of the Chairman to make further Orders for disclosure of documents and provision of further information, pending the main hearing. That is currently listed for 1 March, and we have brought forward the date of that appeal to today, and we propose to deal with it, notwithstanding the fact that it is being dealt with without the opportunity of the Respondents being here, and we deal with it as a preliminary hearing, which is generally dealt with without the presence of the parties, to determine if there is a point of law which would make it capable of being heard in full before the Employment Appeal Tribunal. It is important that our judgment be faxed today to the parties and the Tribunal, and for that reason we will give our judgment in a short form.
4. The Tribunal, by letter dated 6 October 2000, refused some particulars and documents on the ground that the particulars sought were not necessary to understand the case against the Appellant and that the documents did not appear to be relevant to the issues. Those are grounds for refusal and the matter has previously been dealt with by the Courts. In the case of Noorani -v- Merseyside Tec Ltd [1999] IRLR 184, the Court of Appeal confirmed the principles for us to apply as follows:

"in relation to Interlocutory Decisions such Decisions are, essentially, challengable only on what loosely may be called 'Wednesbury' grounds, when the Court at first instance exercise the discretion under a mistake of law, or disregard of principle, or under a misapprehension as to the facts, where they took into account irrelevant matters, or failed to take into account relevant matters, or where the conclusion reached was "outside the generous ambit within which a reasonable disagreement is possible" "

5. We have read, very carefully, the arguments of law put forward before us: this is very much a matter of discretion, and we have come to the conclusion that, although people may disagree with the Orders made, or may agree with them, we can see no error of law in the way in which the Chairman has reached his decision. That is not least because, in the letter of 11 December 2000, the Chairman observed that if information and documents should be seen to be necessary, and are not provided at the hearing, there is an opportunity for an adjournment.
6. We deal first of all with the appeal from the refusal to adjourn the hearing. Mr Wojciechowski has suggested that Article 6 appended to the Human Rights Act 1998 has not been complied with, because he is not able to prepare for a fair hearing, and will not know in advance the case he has to meet.
7. However, we are satisfied that Article 6 will be complied with. The Appellant can be assured of a fair hearing, because a legally qualified Chairman is seised of the issues of discovery, and particulars and further information. He has exercised his judgment upon it, and has shown a readiness to continue to do so at the hearing, and there must be proportionality and a balance. The need to maintain a fixed hearing date is very important in the running of Tribunals in enabling parties, not only these, to have prompt hearings and in avoiding empty days in Tribunals, which are a waste of resources and cause delays for other parties. Therefore there is no error of law and that appeal is dismissed: there is no error of law so far as the Chairman is concerned, but the following matters have arisen, and it may be useful if we just articulate them.
8. There have been undertakings to provide information and documents, in the appeal bundle that we have seen. The Appellant is fearful that he will be caught by surprise at the hearing. We are greatly indebted to the Appellant's son, who has conducted this appeal and is prepared to appear on behalf of his father at the main hearing, for the obvious care and thoroughness with which he is arranging to meet the response of the Respondents and present the case for his father. But, nonetheless, neither the Employment Appeal Tribunal nor the Employment Tribunal is dealing with an applicant who has enormous experience in this area, and accordingly, we would anticipate if all the material, which the Respondents are intending to produce, has not been delivered to the Appellants a week or so before the hearing, he may well feel disadvantaged in preparing his case.
9. There is of course an obligation, not only to meet the requests of an Appellant but to ensure that an opposing party has a reasonable opportunity to prepare before the hearing to know what the case is that they are going to meet, and to see the documents which are to be produced, and we anticipate that standard directions have been given in this case on the various Notices, to ensure that that happens.
10. We now turn to the appeal from the Chairman's refusal of an Order for particulars and documents. In paragraph 9 of the Notice of Appeal, the Appellant set out the documentation that he sought, and we record that in relation to sub-paragraphs (b) (c) (d) and (e), the Respondents have undertaken to provide all the relevant documents and no doubt that will also be in good time.
11. As to (a), the Appellant sought documentation in the personnel files of the Applicant and those in the selection pool of the Applicant, and the objection that was furnished by the Respondents was to assert that he was not entitled to documents in relation to anyone else because he was the only person in his pool, and that he could not undertake a fishing expedition of other individuals. We can understand the reluctance of Respondents to disclose personnel information relating to others, but of course they have a case to prove, and they will no doubt be mindful of what they have to prove before the Tribunal.
12. As to the remaining document at (f), documents directed at showing that there was a genuine redundancy situation are requested. That is resisted on the grounds that it is sensitive material and voluminous; we are interested to see, however, that the Respondents sought to argue that the Tribunal does not have jurisdiction to undertake its own decision as to whether a redundancy situation existed, but rather an assessment of whether the Respondents' conclusion that a redundancy did exist, was reasonable. Whilst we do not directly have to consider this for the purpose of the appeal, we do observe that the Tribunal must be provided with sufficient information with which to assess the judgment of the Respondents in treating the decision that there was a redundancy as the reason for redundancy dismissals.
13. We turn now to the question of further information that is sought, which used to be called 'Further and Better Particulars'. The first request followed the statement in the Notice of Appearance:

"As a result of the review, the Applicant (along with three other staff members) was provisionally selected for redundancy."

But once that statement is made, of course, the Appellant can reasonably be expected to invite the Tribunal to consider the way in which the Respondents approached the decision to single out the Appellant in a pool of one, when on the face of it, they appeared to have been looking at a number of people together. Once that has been pointed out, we are sympathetic with the view that a party would normally expect to be provided with the information as to who those people are, as was set out in the 'Further information - details requested' as shown in the Notice of Appeal. No error of law appears to arise from it, but that matter is now at large, and obviously the Respondents are able to consider this analysis, based as it is on more information and argument than was before the Chairman when he first considered the matter.

14. Then the details were requested about the payment in lieu of notice and holiday pay: we have considerable sympathy with the response of the Respondents about that - that is the sort of thing, although the Appellant may not appreciate it, which is generally taken on board, and dealt with as matters proceed, if necessary by Employment Tribunals.
15. All the above matters are mentioned purely because the matter is before us, time is short, and the observations may be of assistance. However, the Employment Tribunals, and the Chairman in this case is no exception, have enormous experience about regulating their procedures, sensing the sort of information that will be necessary, sensing the sort of information and documents that are not necessary. There is nothing in this case to indicate that this Chairman has done anything other than exercise his discretion on the information then before him, in a sensible and even-handed way, having to strike a balance on the one hand between providing every tiny bit of information and documents, and on the other, providing a focused and efficient means of informally and summarily dealing with the Appellant's complaints; there is no arguable error of law. Accordingly both appeals fall to be dismissed at this stage.