United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS Y ADEDEJI (of Counsel)
For the Respondents	MR J CAVANAGH (of Counsel) Instructed by: Messrs Martineau Johnson Solicitors St Philips House St Philips Place Birmingham B3 2PP


 


HIS HONOUR JUDGE WILSON

1. This has been the hearing of the appeal by the Applicant before the Employment Tribunal against the decision at an interlocutory stage by the Employment Tribunal not to grant discovery of documents sought by the Applicant. We and the parties have been fortunate because the parties have been represented by the same representatives throughout including the Preliminary Hearing before a division of this Tribunal presided over by Judge Clark. We do not need to go into detail so far as the decision of the Employment Appeal Tribunal on the preliminary issue was concerned and it suffices to say that that Court ordered a full hearing of the appeal:-

"On the limited grounds in relation to paragraph (3) to (6) of the list of discovery items sought in the letter of 16^th October 1998"

These items were the Applicant's question papers for the two examinations for which she sat in December 1997, secondly her answer scripts for those examinations and thirdly, the detail of the marking system used by the Respondent if there is more of it than has already been disclosed. Leave was granted for full argument about whether or not those limited classes of documents were needed to determine whether the external markers of the examinations in question had passed her and the College of Law had subsequently failed her and secondly, an unassociated question, whether anonymity was preserved throughout or not.

2. Ms Adedeji on behalf of the Appellant, Ms Aderibigbe says that the disclosure of the documents in question is relevant both with regard to the questions of detriment and anonymity and is necessary for the fair and just disposal of the case. She has referred us to the judgments in the case of Science Research Council [1980] AC 1028 at page 1071 letter g, Taylor –v- Anderton [1995] 1 WLR 447 at 459 and more particularly 462. She submits that the concluding part of the decision of the Tribunal which is to be found in paragraph 9 clearly contains an error of law, that is to say the part of the paragraph which summarises the requirement of the guidance that:-

"The guidance given in relation to discovery of documents is that the discovery should be probative, going to a major issue and be necessary to dispose fairly of the proceedings"

3. We suspect Ms Adedeji does not disagree with the final part of that quotation but she does take issue with the other parts of it relying on the decisions to which we have already referred and also to the judgment in the case of The Captain Gregos reported in the Times on 21^st December 1990. She says that the Tribunal applied the wrong tests when one has regard to those Authorities to which the Employment Tribunal was not referred because the documents which would have led her to them had only been come into her possession on the morning of the application for discovery. She says in paragraph 19 of her skeleton argument;

"You cannot have part disclosure and that in view of what the Respondent College has already disclosed, it is required to complete what it has begun".

4. Mr Cavanagh on behalf of the Respondent College says that the Employment Tribunal has no power to act as a general Court of Appeal against examination results. Pausing there, this Tribunal requires no persuasion that that is the case, but equally it seems to us that that is not the issue. Mr Cavanagh rightly says that the jurisdiction here is based on questions of racial discrimination and points out that such a claim cannot hope to succeed if the alleged discriminator does not know the race of the Applicant. In this case, the examiner did not know anything about the candidates he was examining because they were numbers and not names. Names are only linked to numbers right at the very end, immediately prior to the publication of results and as a clearly necessary administrative final step. Mr Cavanagh has pointed out that the Respondent's position throughout has been that none of the examiners knew the race or sex of any of the candidates because they were going by candidate numbers only.
5. It seems that the Applicant probably accepts that proposition because in one of the documents before us in an attempt to clarify what her claim was, it is asserted that she is not claiming that the examiners discriminated against her. What she is claiming is that the external examiner's mark resulted in her passing but that subsequently the moderators and/or the additional examiner and/or somebody administrative within the college altered the pass mark to a failure. But Mr Cavanagh submits that the actual scripts are not relevant because they are not relevant to the question whether a prejudiced person has changed her score and certainly the possibility of a re-mark is not an option which is open. He says that the Tribunal asked itself the right questions and relies on the statement of the issues in paragraph 10 and on what follows in paragraphs 11 and 12 of the decision. He says that there is no misdirection of law and it was not a perverse decision for the Employment Tribunal to come to. He in his turn relies on other parts in the judgments in the case of The Science Research Council case and Taylor and Anderton and he says that, while recognising that the Employment Tribunal did not see and were not referred to those decisions, if they had been referred it would not have made any difference to the way they decided to exercise their discretion.
6. The way in which the Employment Tribunal put the case is to be found in paragraph 4 of their decision:

"The Applicant's request for these documents were argued before the Tribunal as a preliminary point prior to the Full Merits Hearing. The Applicant argued that disclosure was necessary in order for her to show that she in fact passed the exams in question."

Ms Adedeji today on her behalf says that that is still the position. She admits that the case law in the matter supports her contention that the Employment Tribunal erred in law in the way it exercised its discretion.

7. Pausing for a moment to consider the realities of this case and of so many others like it, it represents and is illustrative of an unhappy climate of distrust drawn on racial grounds. It would be helpful if those bodies and organisations in the position to do so, tried to ameliorate this atmosphere rather than standing on their strict legal rights or positions. We consider that the reality here is that the Applicant is clearly very disappointed to have failed her examinations for the third time so that she is precluded from following that particular professional course again. She suspects that somebody has engineered her failure on racial grounds and that somebody, at some stage in the process between her taking the examinations and publication of the results of the examinations, has linked her name with her examination number and for racial motives has downgraded the marks her papers had earned from the external examiner so that they were below the pass line and she was failed.
8. That was the essence of this matter and it seems to us that, when expressed in that way, it is clear that the examination scripts are vitally important. In our judgment it is by no means certain that had the cases to which we had been referred been brought to the attention of the Employment Tribunal, it would have exercised its discretion in the way in which it did. We have in mind particularly the passage in the judgment of Lord Salmon in The Science Research Council case where he was dealing with the question what does "necessary" in this context mean? That is the context of discovery and we quote from page 1071 at letter G;

"What does "necessary" in this context mean? It, of course, includes the case where the party applying for an order for discovery and inspection of certain documents could not possibly succeed in the proceedings unless he obtained the order; but it is not confined to such cases. Suppose, for example, a man had a very slim chance of success without inspection of documents but a very strong chance of success with inspection, surely the proceedings could not be regarded as being fairly disposed of, were he to be denied inspection."

9. Mr Cavanagh relies on a passage further on in the judgment of Lord Wilberforce where at page 1066 A he says that there are certain circumstances when discovery can be ordered notwithstanding confidentiality and he points out that in this case it is not confidentiality which is at stake. But we have noted that clause 5 of Lord Wilberforces's judgment goes on to say;

"In order to reach a conclusion whether discovery is necessary notwithstanding confidentiality the tribunal should inspect the documents."

It seems to us here that, while confidentiality in the usual sense is not involved, for matters of principle and quite apart from anything else, it is understandable that examination scripts are never shown to disappointed candidates. However, we have it on the authority of Ms Adedeji and her client that Ms Aderibigbe would be content if her scripts are disclosed to the members of the Tribunal to peruse them and she would be content with their assurance, if it be the case, that there are no alterations to the marks for any of her answers. This applies particularly to the marks of the external examiner. That would be the end of the matter and this Tribunal hopes that that may be a stage achieved informally without incurring the costs of the full hearing.

10. If on the other hand, the perusal by the Employment Tribunal members discloses that there are alterations to figures given to each question or to some questions, then that will be an important part of the Applicant's case at the full merits hearing. Only in that context can the oral evidence of the examiners, plus the cover sheets be properly dealt with and it seems to us that for us to find against the Employment Tribunal for those reasons is in the spirit of the decision in The Captain Gregos case reported in the Times on 21^st December 1990. There it was said that the test of relevancy on the question of the discovery of documents was not the probative value in an action, but the question of whether those documents might or could reasonably be expected to provoke a line of enquiry which would be of assistance to a party. The question is not whether the documents would or would not help a party, but whether that party should have an opportunity to peruse the documents. In our judgment in this case, the Tribunal, had it been referred to the Authorities to which we have had the advantage of being referred, would have concluded that they should at least themselves peruse the documents before deciding on discovery or not. Which way they decided after perusal would depend upon what they found in the perusal.
11. It follows from what we have said that we consider that the Applicant's position fulfils the requirements for disclosure. We equally understand the matter of principle which has motivated the Respondent College. If therefore, the Respondent College discloses the Applicant's scripts in each of the papers to the members of the Employment Tribunal for them to peruse, we anticipate that the Employment Tribunal will then be in a position either to reassure the Applicant that none of the figures of marks for any of the questions has been altered (in which case as we understand Ms Adedeji on behalf of the Applicant, the application would be withdrawn and the Applicant herself will be reassured) or, if the perusal discloses alterations to figures of marks for various questions, we would expect the Tribunal to order discovery, not only of the scripts but also of the question papers. We would hope that the parties can agree an informal way to invite the Tribunal to deal with this interlocutory matter without the formality of a full hearing although the Tribunal itself may decide that it will have to have a full hearing if it decides that disclosure has to be ordered. If on the other hand it is able to reassure the Applicant then that can best be done in an informal way.