United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR SMAIR SOOR (of Counsel) Instructed By: BBC Litigation Department 201 Wood Lane White City London W12 7TS
For the Respondent	MISS S BOTHROYD (of Counsel) Instructed By: Messrs Thompsons Solicitors Congress House Great Russell Street London WC1B 3LW


 


MR JUSTICE CHARLES: Today we have before us two appeals and two cross-appeals in respect of Orders for Discovery made and refused by two Chairman of an Employment Tribunal sitting alone at London Central.

1. The parties to the proceedings are the Applicant, a Miss Sandhu and the British Broadcasting Corporation. The substance of the two decisions that are the subject of the appeals and cross-appeals are the same in that the later decision of Mrs Mason, which was made on 7 September 2000, confirms the earlier decision of Mr Flint made on 27 April 2000, albeit that at the time Mrs Mason heard this matter Mr Flint's decision was under appeal. On the face of it that is rather odd but the reasons why Mrs Mason took that course, as we understand it without objection from the parties, are set out in paragraphs 2 to 7 of the Reasons she gave for her decision which were sent to the parties on 11 June and they flow from the fact that Mr Flint did not make any formal orders. It seemed to us on reading the papers that although those reasons were sensible they could now, with advantage, be consigned to procedural history.
2. When the appeals came on for hearing we raised the issue as to what it was we were being invited to do, for example, were we being invited to look at the appeals and cross-appeals strictly in the sense we should decide them and remit if an appeal or cross appeal was successful, or were we being asked to make orders for discovery ourselves.
3. It appeared to us that notwithstanding the indications contained in Mr Flint's decision, and referred to by Mrs Mason in her decision, that Mr Flint was making his orders for discovery on the basis of an acceptance that it was not necessary for the Applicant to further particularise her case before discovery took place that since Mr Flint gave his decision (a) the Applicant has provided further particulars of her case, and (b) in Mrs Mason's decision she very helpfully, as we understand it, with the co-operation of the parties identified issues that arose in this case by reference to information provided before and after Mr Flint gave his decision.
4. I indicated that a potential solution was that the advisers of both parties could negotiate from a stance of co-operation as to the identification of issues and relevant documents. It seemed to me that an initial starting point for that (and inevitably on any issue of discovery) would be the identification of the issues as they now exist subject to further information as a result of discovery. Mrs Mason in her reasons went a considerable distance as to the identification of the issues. In addition, it seemed to me that issues arose as to whether or not the Applicant was seeking to assert that the applications she made prior to June 1999 were to be before the Tribunal as claims, as opposed to background information to the June application.
5. The first point as to that is whether or not a continuing act is being asserted, as I understand it is. The second is whether the Tribunal at the end of the day would be invited to make a just and equitable extension in respect of earlier applications. It was unclear to me whether that was part of the Applicant's claim.
6. Equally, it seems to me that there would be differences in the nature and extent of discovery required if the Applicant was not seeking to invite the Tribunal to make a just and equitable extension.
7. In addition, it seemed to me that issues arose in respect of the communications with the CRE which were not dealt with fully in the skeleton arguments put forward by either side. These issues relate to points of confidentiality and public interest which throws one back to Lord Wilberforce's speech in Science Research Council v Nassé [1980] AC 1028 and to the way in which it and such issues have been treated and analysed in cases such as Re Arrows (No 4) [1995] 2 AC 75, Soden v Burns [1996] 1 WLR 1512, Soden v Burns (No 2) (and I am not sure whether this has been reported) and Wallis Smith Trust Co Ltd v Lloyd Askins & Sells [1997] 1 WLR 257. It may be that matters have moved on since I was involved in such issues in some of those cases.
8. It also seemed to me that the distinction between evidence and discovery had not been properly identified in respect of the issue concerning communications with the CRE. Further, section 52 only applies expressly to documents in the possession of the CRE.
9. All of those issues potentially give rise to questions which could occupy courts for some time. To give one example, it may be that the preliminary views of a regulatory or investigative body may satisfy the Peruvian Guano test as to relevance because they would alert a party to a train of enquiry, but would not pass the witness summons or subpoena test (although expressed in equivalent language). In this context I refer to the reported cases in the Macmillan v Bishopsgate litigation relating to discovery and subpoenas (e.g. Macmillan v Bishopsgate Investment Trust Plc [1993] 1 WLR 1372 where it was held in respect of a subpoena that production of documents was not necessary for disposing of the cause or matter but as I recall it in an earlier decision on the issue of discovery it was recognised that the documents were so necessary but discovery was refused on the grounds that the documents were not in the possession etc. of a party). In making this point I am, of course, aware that the evidential rules before Employment Tribunals are less strictly adhered to than in other courts. But it seems to me that the issue could arise on the approach set by the Nassé case as to whether or not production of preliminary views, or views of an investigative body not involved in a formal investigation, were necessary for fairly disposing of the cause or matter and/or whether they should be admitted in evidence. Equally, equivalent issues could arise as to whether the production of the personnel files of considerable numbers of people were so necessary and indeed, as I recall it, the disclosure of personnel files was one of the issues with which the Nassé case was concerned. A further potential gloss is the effect of the new rules of court.
10. Such issues potentially give rise to difficult questions which cannot be properly answered without sufficient definition from the parties of the issues in this case and their rival contentions and thus from the Applicant as to what her case is and from the Respondent as to what their defence is and as to the nature of the documents they hold.
11. Before us both parties indicated that they would wish to take some time to see whether it was possible for them to agree issues relating to discovery, or a framework relating to discovery which would operate in substitution for the orders already made by the Employment Tribunal. It seemed to us that that was a sensible idea for primarily two reasons. One, water has undoubtedly passed under the bridge since Mr Flint made his order and two, it seems to us that if the two orders remained exactly as they were, an expeditious and fair disposal of the issues between these parties warranted further efforts being made in relation to the identification of issues and discovery.
12. It also appeared to us, in respect of the discovery issue, that the parties through their respective advisers had taken an unnecessarily confrontational stance in the correspondence. Of course, we appreciate that many of the issues can be described as "chicken and egg" or "cart and horse" issues. We also appreciate that an Applicant, in the position of this Applicant, does not know all the information in the hands of the Respondent. However, this Applicant has been employed and, as we understand it, still is employed by the BBC and, with the benefit of professional advice, should be able to identify the nature of her case in general outline. Having said that, we accept that that outline could be a starting point and her case could be further particularised (or altered) by reference to documents disclosed at a later stage.
13. On the other side of the equation the BBC have felt perfectly able to identify, with some clarity, the nature of their case in respect of the last application, it would follow that they should be able to do so in respect of some of the other applications. Equally, they should be able to identify in general terms their case in response to the particulars that have now been given by the Applicant of (i) the grounds upon which she says there was a practice which makes her case on direct discrimination one based on a continuing act, and (ii) the basis of her claim for indirect discrimination.
14. It seems to us that at this stage a starting point for both sides towards the fair disposal of these proceedings is for them to stand back and take stock, for the Applicant to put forward a points of claim which will bring together her Originating Application and her existing particulars and then for the Respondent to put forward a points of defence. These documents can be entitled "preliminary" if the parties so wish to indicate that things may be added to them.
15. It equally seems to us that it would be productive for the Respondents to identify, by way of list, classes of documents which they say are relevant to the issues so defined, the difficulties they have as to production of some of those documents and any points they wish to make as to inspection of those documents.
16. As we understand it, during the adjournment the parties embarked upon a course similar to that to try and identify issues and produce appropriate discovery to enable this case to be dealt with properly and fairly.
17. We accept that such a course is not an easy task or something that can be achieved in the twinkling of an eye. We were told that progress had been made, but the parties had not been able to reach agreement as to an appropriate framework to substitute for the existing orders and the appeals in respect of them. What the parties wanted (and we would accept that it was sensible to make this suggestion) was more time to see, having regard to events that have happened since the orders were made, whether an alternative framework satisfactory to both sides could be identified, agreed and put into effect. The parties therefore sought an adjournment of the appeals and cross-appeals.
18. It seems to us that it is sensible to take that course. To avoid the parties having to return to this Tribunal, should they be able to agree an alternative framework, we propose to make an order today that if, within 14 days from today, the parties lodge with this Tribunal an alternative framework signed by their respective representatives, we will allow the appeals made by the BBC and dismiss the cross-appeals made by the Applicant. That should not be taken, and is not intended, as any indication by us as to the merits of the appeals and cross appeals. The nature of those orders flows from the fact that in the BBC's appeal an order was made by the Tribunal below and in the cross-appeal an order was not made, and the purpose of those orders is to ensure that the parties are starting from a neutral base in the absence of any existing orders by an Employment Tribunal relating to discovery.
19. We also envisage that the agreement (if there is one) will contain provisions making it clear that neither side are abandoning arguments that they would have advanced on the appeals and cross-appeals and both sides are free to take such of those points, as they wish and if they remain live ones, in respect of the documents that were the subject matter of those appeals in any issues that arise for future decision in respect of discovery either by the Employment Tribunal or the Employment Appeal Tribunal.
20. That is a somewhat unusual course but it seems to us to reflect the changing position that has evolved during the course of these proceedings and, more importantly, reflects the need for these parties, through their respective advisers, to make real efforts to identify the issues so far as they can and the documents that both sides are asserting need to be disclosed and inspected. Even if the parties are unable to reach an agreement as to the appropriate framework, it seems to us that the efforts that they will make during the course of the adjournment could lead to the result that this Tribunal, on an adjourned hearing, would either of its own motion, or at the invitation of the parties, feel able to decide the substantive issues as to discovery that then exist and have been identified, rather than confining themselves to the question whether or not Mr Flint or Mrs Mason erred in law some time ago in respect of a different background. That will be a matter for the new Tribunal and the parties. We, of course, accept that the initial decision-maker on procedural issues such as discovery is the Employment Tribunal.
21. We express the hope that both sides will approach the issues of discovery with a view to identifying substantive issues for the present and future, rather than concentrating on issues as to whether or not, for example, Mr Flint took the correct approach in ordering discovery in respect of the applications without further particularisation of the Applicant's case and refusing discovery in respect of communications with the CRE, when at that stage (if I remember the history correctly) there was little or no particularisation of the Applicant's case as to a continuing act and/or indirect discrimination.
22. We recognise that the task relating to discovery is not easy but I repeat that it seems to us that the initial steps in respect of any application for discovery is so far as is practical to identify the issues as they then exist. We are grateful to Mrs Mason and the parties for identifying them in her Extended Reasons but nonetheless it seems to us that a sensible starting point for the creation of an alternative framework would be points of claim and points of defence.
23. We will therefore adjourn the appeal and cross-appeal on the basis I have outlined and direct that they should come on for hearing again, by way of interlocutory hearing if, within the 14 days mentioned, the document I have referred to is not lodged with this Tribunal.