United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MCCARTHY Appearing under the Employment Law Appeal Advice Scheme


 


HIS HONOUR JUDGE J R REID QC

1. This is an appeal against a decision promulgated by the Employment Tribunal held at London South on 24 July 2001. It bears the date of 18 July, so there was some delay in sending it out. The decision was an interlocutory decision dealing with a wide variety of matters following a pre-hearing discussion. The Chairman clearly took great care over the wide variety of points raised before him identifying the issues that needed to be determined and making a variety or orders and directions which are set out in the second schedule to the order at pages
   10 – 12 of the bundle, and then in the third schedule, listing the documents to be disclosed. Against that decision the Appellant here, the Applicant below, Mr Arfan Kahn, appeals. We are extremely grateful to Mr McCarthy who was his representative here today under the ELAAS Scheme.
2. Although the skeleton argument which was put in dealt with a total of six documents, which it was said should be disclosed as well as dealing with the blanking out of certain other parts of the documents, the argument before us today has dealt with two matters only. The first is an application for discovery of a memo or letter from a Ms Juliet Rodgers who, it is said, instructed tax to be deducted from payment to a temporary worker, a Ms Omezi. It was suggested that this was done on racial grounds. Ms Omezi, it is said, was a student and should therefore have been paid gross. It is suggested that because she was a student, and incidentally, a foreign national, the letter or memo can illustrate a racial background to the activities of the Respondent.
3. That point appears to us to be completely hopeless. There is an obligation to deduct tax rather than pay people gross. There may be circumstances in which it is not necessary to deduct tax. In our judgment the Tribunal Chairman quite clearly came to the right conclusion when excluding this document as being irrelevant and refusing to grant discovery of it. So far as that is concerned the matter clearly should not go to a Full Hearing and the appeal so far as it relates to that should be dismissed at this stage.
4. So far as the second point on the appeal is concerned, the order was in these terms:

"No later than 1 August 2001 the Second Respondent shall notify in writing both to the Applicant and the Tribunal whether the Second Respondent objects to disclosure of any document recording deliberation of the various tenders received for the security contract at 159 Great Dover Street (with names of tenderers deleted)"

What is said is that the names of the tenderers should not have been deleted because that would cause injustice to Mr Khan and would make his case much more difficult. The reason this is said to be the case is that Mr Khan asserts that a particular security company was the front runner for a new contract providing security overnight and at weekends at 159 Great Dover Street, but that that company mysteriously ceased to be the front runner and became the back runner at the time that it emerged that Mr Khan would continue to be employed by that particular company. He says there is evidence of that in a letter which he deduces was addressed to a company called CIS on 31 October which contains a sentence in these terms:

"Coupled with issues of continuity and the TUPE difficulties you highlighted, it has been decided that Trident should be awarded the contract to continue for another year. "

He says that the reference to continuity and TUPE difficulties that letter was a reference to his continued employment and that the letter demonstrates that in fact the writer of the letter, Mr Noke, the Residence Manager of the Student Residence, 159 Great Dover Street, was anxious to get rid of him on racial grounds.

5. The extent to which discovery is necessary in any particular case is a matter essentially for the Tribunal which initially has to deal has to deal with the issue of discovery. Here no real question of law has been addressed to us. What has been said to us is simply that the case would be much more difficult for Mr Khan if the blanks of tendering security companies were not filled out and there would therefore be a risk of injustice. The suggestion that there is no power in law to direct that there should be disclosure with immaterial or confidential or otherwise undesirable passages blocked out was quite rightly not proceeded with. There is and always has been such a power.
6. In this instance it was a matter for the discretion of the Chairman of the Tribunal as to whether it was necessary for the blankings out to be filled in in order for Mr Khan to present his case properly and fully. He held, after what was clearly a lengthy, detailed and careful deliberation, that it was not necessary. He therefore acceded to the suggestion that the names of the various tenderers need not be disclosed and should be deleted from documents disclosed. That was a decision which it was quite within his rights to make. There had been no indication before us that that was a decision which could be said to be perverse or unreasonable. Indeed the course of the argument before us has demonstrated pretty clearly that Mr Khan will suffer no disadvantage whatsoever as a result of names being blanked out.
7. In those circumstances, it seems to us, that the appeal would necessarily be hopeless. It should not proceed to a Full Hearing. It will therefore be dismissed at this stage in relation to this point also.