United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON
For the Respondents	MR S WILSON (of Counsel) Simmons & Simmons 21 Wilson Street London EC2M 2TX


 


MR JUSTICE LINDSAY (PRESIDENT): We have before us an application by way of appeal in an interlocutory matter. The matter is Doddridge against Associated British Ports and it is Mr Doddridge, who appears in person, who is the Appellant. Associated British Ports appears by Mr Wilson.

1. The substantive hearing had been fixed for 22 and 23 June 2000 so the matter came on with a sense of urgency but it transpires that the substantive hearing has been adjourned.
2. In the Employment Tribunal, as is well known, there is no automatic provision for disclosure or discovery (as it is called) but there is a rule on the subject. Employment Tribunal Rule 4 (1) (b) reads as follows:

"(1) A tribunal may, on the application of a party made either by notice to the Secretary or at the hearing of the originating application, or of its own motion –

(b) require one party to grant to another such discovery or inspection (including the taking of copies) of documents as might be granted by a county court,

and may appoint the time at or within which and the place at which any act required in pursuance of this rule is to be done."

3. In this case Mr Doddridge made a request on 4 April 2000 addressed to the Port Company's Solicitors, Simmons & Simmons, and said:

"Your reply to my request for Further and Better Particulars and Identity of Witnesses should reach me within fourteen days from the date of this letter. Should I not receive the details as requested within this time scale then I shall make application to the Employment Tribunal for the relevant orders."

And attached to that was his request which I will come back to. That was acknowledged, but nothing more, by Simmons & Simmons on 5 April 2000. They wrote, saying:

"In relation to your Request for Further and Better Particulars, we shall seek our client's instructions and revert to you in due course."

4. Then there was silence and, not unreasonably, not having heard anything further, Mr Doddridge wrote to the Employment Tribunal on 27 April 2000 and he said, inter alia:

"The Respondent has failed to furnish me with the relevant information requested, and other than a letter dated 5 April 2000 from the Respondents Solicitors, confirming receipt of my request with the promise to revert to me in due course, nothing further has been heard.

I would be obliged if you would now consider my request to issue this Order and in view of the date of 19 May 2000 …"

- and I will interpose there that that was then thought to be the date of the substantive hearing -

"… set for the case to be heard, an early date stipulated for compliance with the order would be appreciated."

5. On 10 April 2000 it seems the Employment Tribunal answered. Apparently, whatever the answer was on 10 April, it was mistyped (as will later transpire) and we have not got a copy of it but, at all events, it refused disclosure.
6. On 16 May 2000 Mr Doddridge wrote back to the Employment Tribunal and he said this:

"It is my intention to appeal this refusal decision. I therefore require the full written reasons and all details relating to that decision, including copies of all correspondence and other communications between the Respondent and the Tribunal on this matter."

7. On 23 May 2000 there was a letter written back to him from the Employment Tribunal that said that the earlier letter of 10 May contained some typing errors and was to be replaced by an amended letter and the amended letter, which is our page 11, is dated 23 May 2000 and it says this:

"A Chairman of the Tribunals has refused your request for an order. He has instructed me to say that the documents requested are not relevant to the material issues in this case, save for the documents before Mr Schofield, which will be in the Respondents bundle."

8. Mr Doddridge answered on 29 May 2000 making, inter alia, an obvious but nonetheless telling point. He says:

"The amended letter of 23 May 2000 states that a Chairman of the Tribunals has said that the remaining 'documents requested are not relevant to the material issues in this case'. Evidently the Respondent must consider the issues to which the documents relate are relevant to the material issues, or they would not have raised them in their response to my originating application. With respect, I would not expect the Respondent would acquiesce to these particular parts of their response being denied them as not relevant to the material issues of this case."

He is, in effect, saying that so long as the Respondents have arguments in their IT3 to which the documents are relevant, then the documents are relevant for him, Mr Doddridge, to seek by way of an Order. The final letter is 7 June 2000, where the Tribunal writes to Mr Doddridge saying:

"Your request for an order for discovery was refused since it appeared and still appears to the Chairman, that Mr Schofield would inevitably produce the relevant documents in the respondent's proposed bundle. …"

I interpose we have not seen details of the Respondent's proposed bundle, but, to continue with the quotation:

"Since you retain an anxiety about the documents to be used at the hearing, the Chairman hopes that if the respondent has not yet served any documents on you they do so imminently. The direction was that a joint bundle should be agreed seven days before the hearing."

9. Mr Doddridge then put in a Notice of Appeal of 6 June which we do not need to read because the argument on the point is short enough.
10. The only ground for refusing documents on the Chairman's part has been relevance and, although we will not take up time to examine each of the heads of documents which are claimed for and what the solution in each case is, it is convenient to take an example. Thus, in his IT1 Mr Doddridge expands his basic complaint which is of "Unfair Dismissal, Wrongful Dismissal and Breach of Contract" by saying, under the heading "Details of the complaint":

"Reason given for dismissal as 'absence without authority'. This is insufficient reason in the particular circumstances."

And a little later:

"Absence resulted from an ultimatum given on 3 September 1999 concerning the imposition of duties without consultation, notice or agreement, not being part of the negotiated contract conditions and constituting fundamental change to the contract."

11. Part of the Respondent's answer to that particular allegation is to be found in the very comprehensive Notice of Appearance on behalf of the Respondent, which is some six and a half close-typed pages, and in the course of that they say, in their paragraph 17:

"The only change in the Applicant's duties following the reorganisation was that he was no longer required to deputise for the Port Engineer."

And accordingly, taking this as an example of the nature of Mr Doddridge's requests, his first request is:

"Reported discussion of duties with Applicant in March 1998. A copy of the original notes of that discussion."

12. The reference to change of duties and so on was not only in the Respondent's paragraph 17 but also was in their paragraph 33.6 which begins:

"Following the reorganisation of the engineering function, the Applicant's duties were fully discussed by the Respondent with the Applicant in March 1998."

13. It seems to us impossible, so long as the Company in its IT3 asserts, in relation to the allegation of an imposition of duties, that they had not changed, well then, the notes of discussions on the subject must be relevant. It is not necessary to go through each of the first five headings of Mr Doddridge's eight items under which he seeks disclosure because in the Respondent's skeleton argument it is accepted that the first five categories of documents that Mr Doddridge claims "derive from the Respondent's response to the Appellant's allegations in his IT1".
14. So it seems to us, as long as the Respondent's IT3 as enlarged upon contains the material that it does, it is not possible for a Tribunal, properly instructing itself, to say that the material which Mr Doddridge seeks is not relevant. In other words, in respect of those first five items the Tribunal Chairman, in ruling that there was no relevance (and that, after all, was the only ground relied upon), erred in law.
15. Mr Doddridge has next a category (6) "Co-ordination of staff to hear a formal grievance request" and he asks for copies of the relevant diary pages in a particular period, 4 October to 10 November 1999. There is, in fact, no suggestion in the IT3 that there is any documentary evidence on that subject and in this particular area it does seem that Mr Doddridge is "fishing" in the hope that some document might turn up and might help him. Without hearing Mr Doddridge in any detail on that item, it is difficult to accede to his request. We perhaps ought to revert to Mr Doddridge on that particular item, request (6), under "Particular 22", but going on to request (7):

"Particular 29 – Disciplinary Hearing conducted on 22 December 1999.

The notes of all the evidence considered by Ian Schofield with his conclusions".

16. These are relevant and, as I understood it, it is not denied that these are relevant but the answer on the Respondent's part is these are going to be produced in any case. But there is no undertaking yet, as I understand it, to produce them and so in respect of request (7), as the case would be with requests (1) to (5), we would allow the appeal and order their production and we will come back to the parties to discuss the time which is to be prescribed for that production. Then we have request number (8) by Mr Doddridge:

"Particular 17 – Changes in Applicant's duties

Job Description, Responsibilities, Duties, Qualifications and Salary" and so on.

17. That is very much within the area that I examined more fully by way of example and, again, it seems to us that the Chairman erred in law in concluding, in the light of the shape of the IT3, that the material asked for was irrelevant and so again we would order production and allow the appeal to that extent and will again hear the parties on the time that is needed for this production.
18. There obviously needs to be a fairly tight timetable. We have not been told to what new date the hearing has been adjourned but it remains to us now to hear Mr Doddridge as to any particular case for his heading (6) and, if there is none, then we would have to disallow any order for disclosure in relation to the heading (6). So we will hear him on that and then we will hear both sides on the time that is needed in order to comply with the order which we will be making.