United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	CHRIS QUINN (of Counsel) Messrs Warren & Allen Solicitors 76 Bath Street Ilkeston Derbyshire DE7 8FE
For the Respondent	GEMMA WHITE (of Counsel) Office of the Solicitor Department of Social Security Block 1 Government Buildings St Agnes Road Gabalfa Cardiff CF14 4YJ


 


THE HONOURABLE MR JUSTICE MAURICE KAY

1. This is an appeal from an Order made by the Employment Tribunal sitting in Nottingham on 13 February 2001. The Appellant, Mr Knight, had been anxious to secure disclosure of certain documents in relation to his application to the Employment Tribunal which is in the form of a disability discrimination claim to which there is added, albeit it seems to us somewhat half-heartedly, a sex discrimination claim.
2. The background is that Mr Knight applied for an A4 administrative post with the Benefits Agency. It is now common ground that he is a disabled person. The procedure administered by the Benefits Agency, for whom the Department of Social Security is responsible, was that disabled applicants who did not meet the specified educational qualifications for the job were nevertheless invited for an examination which, if they passed it successfully, would lead to an interview. As such it was for disabled candidates an alternative to having the specified minimum educational qualifications. It is referred to as 'a guaranteed interview'.
3. Mr Knight was one of a number of disabled candidates who did not have the minimum educational qualifications but who presented for the test. He was initially informed by a letter dated 12 February 1999 that he had passed that test. If that had been right it would have led to his being interviewed. However, by a later letter dated 18 March 1999 he was informed that the earlier letter had been an error and that he had failed the test, having obtained a mark of 40 whereas the pass mark was one of 42. He therefore was not invited for interview. The outcome of the recruitment process was that some 32 people were appointed to positions and a larger number were maintained as a kind of pool from which to fill vacancies as they arose thereafter. It is in relation to his experience with that testing procedure and what happened thereafter that Mr Knight is seeking to allege discrimination.
4. When the matter came before the Tribunal it considered Mr Knight's request for disclosure of documents under 4 headings: -

1 His original test papers as marked.

2 The original test answer papers of the 32 successful applicants.

3 The original test questions taken by all the disabled applicants.

4 The application forms of the 32 successful candidates.

5. The Order made by the Tribunal appears to have accepted the relevance of those documents but disclosure was provided for in a very restricted way. Indeed, disclosure to Mr Knight or anybody representing him was not provided for at all. The explanatory letter from the Employment Tribunal contains this direction:

"The matter is to be listed with a time estimate of three days. On the first day the members of the Tribunal will consider the documentation lodged by the parties. The Tribunal will consider on that day the questions and answers for each of the successful candidates and the Applicant in order to ascertain whether or not the answers have been properly marked. It will not be necessary for the parties to attend on that day."

In other words the Tribunal appears to have anticipated the documents being provided to the Tribunal by the Department of Social Security whereupon the documents would be perused by the Tribunal on the first day and a conclusion would be reached by the Tribunal as to whether or not the answers had been properly marked. That process did not involve disclosing the documents to Mr Knight or anybody representing him.

6. It is now common ground that such an approach was inappropriate. If authority were required for that proposition it is to be found in the judgment of Mr Justice Hobhouse in Pamplin v Express Newspapers [1985] 1 WLR 689 and 695 where his Lordship said:

"The answer is that ultimately the principle that each party must have the right to see any relevant material which his opponent is placing before the Tribunal and which that Tribunal is taking account in arriving at its decision must prevail."

From an early stage in this appeal process the Department of Social Security conceded that point and adopted the stance that it was inevitable that this appeal be allowed. The question then arose as to what else this Employment Appeal Tribunal should do and it became common ground today that we should give directions upon disclosure rather than simply allow the appeal and remit the matter to the Employment Tribunal to do it anew. That course we shall take.

7. The present regulations governing disclosure in the Employment Tribunal are provided in that part of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 dealing with case management. Schedule 1 of the Regulations is headed 'THE EMPLOYMENT TRIBUNALS RULES OF PROCEDURE' and Rule 4(5) states:

"A tribunal may, on the application of a party or of its own motion, - ….

(b) require one party to grant to another such disclosure or inspection (including the taking of copies) of documents as might be granted by a court under rule 31 of the Civil Procedure Rules 1998(a)."

We do not propose to set out Rule 31 of the Civil Procedure Rules. It is an extensive provision. We observe in passing however, that, as with the remainder of the Civil Procedure Rules, it has to be approached by reference to the overriding objective which is set out in Rule 1.1(1) in these terms:

"1.1(1) These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly."

Rule 1.1(2) then goes on to list a number of matters which are to be included in the concept of "dealing with a case justly". They are:

"(a) ensuring that the parties are on an equal footing;

(b) saving expense;

(c) dealing with the case in ways which are proportionate –

(i) to the amount of money involved;

(ii) to the importance of the case;

(iii) to the complexity of the issues; and

(iv) to the financial position of each party;

(d) ensuring that it is dealt with expeditiously and fairly; and

(e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases."

That then is the basic framework.

8. We now turn to the items in respect of which disclosure it sought by the Appellant. They mirror the matters referred to in the Order of the Tribunal, save that there has been added a fifth item, namely a set of model answers. We deal first with that addition. It is common ground that a set of model answers is a relevant document so far as the issues between the parties are concerned. That much is conceded in the Respondent's skeleton argument. The issue in relation to this item is whether there should be some restriction of the persons into whose hands the model answers may go. In that skeleton argument the Respondent indicated a willingness to supply model answers to the Appellant's solicitors on condition that the solicitors undertake: -

(a) not to provide copies to the Appellant or any person other than counsel instructed in the matter, or to allow any person to make copies of the documents or the information contained in them; and

(b) not to show the model answers to any person other than the Appellant and only to show those answers to the Appellant in the presence of member of that firm.

9. The submission of Mr Quinn on behalf of the Appellant is that there is no justification for any such restriction. In addition he points out that the Appellant may or may not be legally represented before the Employment Tribunal. He was certainly not receiving the benefit of legal representation prior to the Preliminary Hearing of his appeal to the Employment Appeal Tribunal. In the ordinary course of events it would be difficult, if not impossible, for him to obtain funding for representation at a 3 day hearing before the Employment Tribunal. Accordingly a threshold difficulty with the Respondent's approach is that it is based on a hypothesis which may be wholly inappropriate.
10. It being common ground that this item is relevant, it seems to us that it ought to be disclosed to the Appellant. We are not attracted by any of the suggestions about a restriction being built into the Order as to persons or places where disclosure and inspection may take place. We also observe that the Respondent has already provided disclosure of the Appellant's marked paper. In our judgment, so far as model answers are concerned, they ought to fall within the ordered disclosure and having done so the only restriction which we would propose to insert in the Order is one along the lines of Rule 31.22 of the Civil Procedure Rules which anticipates that in some circumstances the Court will order a restriction or prohibition on the use of a disclosed document even where the document in question has been read to or by the Court, or referred to at a hearing which has been held in public. It seems to us that in a case where it is quite likely that the Appellant will be presenting his own case (perhaps with assistance) at the Employment Tribunal it is desirable to bring home to him in express terms the provisions of Rule 31.22 which show that a party to whom a document has been disclosed may use it only for the purpose of the proceedings in which it is disclosed save for certain specified circumstances and we shall add to the Order of the Employment Appeal Tribunal a specific order restricting or prohibiting further use. That deals with the model answers.
11. The next item is the test questions used by the Department of Social Security. In relation to the test questions Ms White submits that they are not relevant. That is because on a strict construction of the Appellant Originating Application it seems that his case is that he in fact passed the test but that his answers were "doctored". Thus, submits Ms White, provided that he has his examination paper and the model answers he can prepare for his case and present it without the need for disclosure of the test questions. We do not consider that the relevance of the test questions can be disposed of quite so readily. One of the matters which has led us to that view is that a perusal of the Appellant's examination papers, which are in the form of multiple choice questions, shows that whereas most of the questions attract either ticks or crosses (one infers for correct or incorrect answers respectively) a number have symbols which appear to us to be ticks upon which a cross has been superimposed. There may well be a ready explanation for this, we know not. Ms White is not in a position to satisfy our concern in that regard. For that and other reasons, in the context of a discrimination case such as this, it seems to us to be wrong to deny the Appellant access to the test questions if relevance is the only argument against such a disclosure.
12. In fact the Respondent advances 2 further arguments against disclosure. It is said that the questions are confidential and that if they were to enter the public domain the Respondent would be, or might be, put to the cost of setting a new test and that would be in the region of £150,000 to £200,000. The argument on the ground of confidentiality does not get the Respondent very far. Confidentiality in itself is not a basis for refusing disclosure of the relevant documentation. We have carefully considered the question of cost. The material before this Employment Appeal Tribunal does not include detailed evidence about the difficulties which would or might arise or about the cost that would follow from them. We are dependent solely upon what Ms White has been instructed to contend. It is, it seems, a fact that these test questions have been used in numerous circumstances by the Department of Social Security and possibly other Government departments for about 6 years. Very many people must have sat the exam. Also pursuant to our Order the Appellant will in any event be in possession of his own examination script together with the model answers. Candidates, so far as we can see, are not put under any obligation of non-disclosure in relation to the contents of the tests which they sit in this area. For those and other reasons we have come to the conclusion that whilst cost is a material matter for our consideration, in the overall context of the case it should not deprive the Appellant of disclosure of the test questions. Once again we take the view that the Order for disclosure of the questions should include a specific order prohibiting and restricting further disclosure save of course to any solicitors or counsel representing Mr Knight and any person legitimately requiring sight of such documentation in the preparation and presentation of his case.
13. The next item relates to the test papers completed by the other applicants. They number some 22 and therefore the cost of copying is not significant in this aspect of the case. It seems to us, and consistently with what we have already held, that the test of relevance is passed. In the light of those conclusions the only issue then would become one of confidentiality. We take the view that so far as that is concerned any mischief could be obviated by the papers having excised from them the names of the candidates and any personal details which might enable them to be identified. Once again therefore we propose to order disclosure but yet again on the same basis as to the Order including a specific prohibition or restriction on further disclosure.
14. The fourth item was the Appellant's own test paper. That is no longer in issue, it has now been supplied by the Respondents to the Appellant.
15. The fifth item is the application forms completed by the Appellant and the other applicants. This is limited, as we understand it, to the 32 successful candidates and not the several hundred applicants who responded to the advertisement. So far as this is concerned the Respondent raises no issue as to relevance to the extent that confidentiality might have arisen. No point is made about that in this context. In any event we do not see how it could avail the Respondent save in respect of the need to blank out the names and personal details of the applicants. The difficulty that has arisen in relation to this item is that it is now said on behalf of the Respondent that whilst they have the Appellant's application form and have supplied a copy of it to him, the other 32 successful candidates' forms are no longer in the possession of the Respondent. Indeed, it is said that they were no longer in the possession of the Respondent at the time when the Employment Tribunal made the Order which is the subject of the present appeal.
16. In our judgment the appropriate course for the Employment Appeal Tribunal to adopt in relation to this item is to include it in the Order for disclosure on the same terms and with the same restrictions to which we have referred in relation to the other items. Of course, if upon further search, the position is confirmed as being one in which the documents are no longer in the possession of the Department of Social Security then that will have to be made clear in the disclosure statement which has to be made in accordance with the provisions of Rule 31 of the Civil Procedure Rules and the practice direction made thereunder. It is for the Department of Social Security through one of its authorised officers to explain the disappearance of those documents and the extent of the search that has taken place and such explanation must be accompanied by a statement of truth.
17. Those then are the Orders that we propose to make. An issue was raised by Ms White as to the timing of such disclosure obligations. She invited us to the view that rather than order disclosure within a specified period from this hearing we ought to work backwards from the eventual hearing in the Employment Tribunal once a date for it has been fixed. In other words she invites us to say that the disclosure take place within say 28 days before the hearing in the Employment Tribunal. We do not propose to go into her reasoning in that regard which was, it seems to us, capable of both a generous and ungenerous interpretation. We do not propose to accede to that unusual course. It seems to us that the purpose of disclosure is to enable a party properly to prepare his case for an anticipated hearing and that consistently with the spirit of the Civil Procedure Rules the sooner that that takes place the better. Accordingly, so far as time is concerned, we shall direct that the disclosure which is to be made pursuant to our Order shall be by a disclosure statement within 14 days of today.
18. In the course of his submissions Mr Quinn sought to persuade us that, so desirable is it that Mr Knight have the benefit of legal representation before the Employment Tribunal, we ought to express an opinion which might lead to public funding becoming available to him. It is demonstrated to us that by Section 6(8)(b) of the Access to Justice Act 1999 it is now possible for community public funding to be allocated for a case in an Employment Tribunal in relation to:

"Exceptional individual cases."

We do not propose to involve ourselves in that issue at all. We are in no position to assess whether this is an "exceptional individual case" not least because we are wholly unable to come to any view as to the prospects of success in relation to this action. If the Appellant is to seek public funding, and Mr Quinn tells us that it is already being sought, then the appropriate body to determine the application of the provisions of the Access to Justice Act is not this Appeal Tribunal but is the statutory authority entrusted with the task.

Mr Quinn, Ms White, there is a complicated Order as to disclosure. Would it be possible for you to draft it for the benefit of the Employment Appeal Tribunal and lodge a copy in the course of the next 24 hours or so?

(Mr Quinn) – Of course sir. Hopefully I would certainly be in a position to lodge that by tomorrow morning.

Thank you.