United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR URUAKPA (Husband)
For the Respondent	MISS S MOORE (of Counsel) Instructed By: Ms S Robinson Office of the Solicitor Department of Health Room 533 New Court 48 Carey Street London WC2A 2LS


 


MR COMMISSIONER HOWELL QC:

1. We have before us today two interlocutory appeals by Dr Uloma Adaeze Uruakpa in her proceedings against the Meat Hygiene Service, commenced by Originating Application on 5 May 2000, alleging racial discrimination against her in the process of selection for the post of Official Veterinary Surgeon (OVS) which is a difficult and demanding job, in particular involving going into slaughter houses and assessing the hygiene of meat products.
2. The appeals before us in the pending Employment Tribunal proceedings, which we understand are due for effective hearing later this month, are against two decisions of the Chairman of the Birmingham Tribunal recorded in letters sent to the parties at his direction. The first letter at page 19 of the file EAT/45/01 determined in effect that no further particulars of the Respondents' case should be required of them, beyond those already given in their detailed answer to the proceedings at pages 26 to 31 of that file submitted on 8 June 2000, and a reply containing particulars dated 19 October 2000 at pages 11 to 17, that reply having been given in response to a request by letter dated 23 July 2000 sent to the Respondents by the Applicant. That letter had sought, among other things, the names and professional addresses of all the successful candidates in the interview process at which she had not been successful, and also details of "all reported incidents of hostility, resentment and confrontation between plant or slaughterhouse operators and meat hygiene staff"; the period for which the details of those instances were to be given being specified as the whole of the last ten years.
3. There is no dispute that the relevant details of the successful candidates, other than their names and addresses, have already been supplied by the Respondents; and the Respondents have also supplied records and notes of the questions asked and answers given, by not only the successful but also the unsuccessful candidates, at the interviews in which the Applicant took part.
4. The "incidents of hostility" request was occasioned by a paragraph in the Respondents' grounds of resistance on page 28, at paragraph 7. This had sought to explain or rebut the assertion in the Originating Application that the Applicant had been discriminated against on racial grounds by being refused employment as an Official Veterinary Surgeon on the ground, as it had been put to her in the letter sent to her after her interview, that she did not possess a very good level of spoken English. Paragraph 7 of the Respondents' answer to the claim says, among other things:

"The job criteria were formulated with the challenging and difficult aspects of the OVS job in mind. OVS and MHS staff are required by law to be present at the meat plants to undertake hygiene inspection and enforcement of regulations. … Plant operators are sometimes hostile to and resent the presence of MHS staff and the level of charges. Because of the potential for conflict/confrontation, the technical nature of the position, the need to ensure compliance with the law and to undertake enforcement action where appropriate; the ability to communicate effectively with MHS staff and plant operators in spoken and written English was one of the essential criteria for the post."

5. The further particulars supplied in relation to that at page 12 of the appeal file, indicated that it was not possible for the MHS to disclose specific instances of reported hostility, resentment, confrontation and conflict, which were attributable to poor communication skills of MHS staff and added that:

"It should not be construed that the MHS requirement for OVSs to be effective communicators is specifically for reasons of having to deal with situations of potential conflict and confrontation. However, such skills are considered by the MHS as relevant to confrontation and conflict resolution."

6. The Appellant's case is that the Chairman was wrong not to order yet further particulars under both of those heads, that is the names of the successful candidates and the very wide ranging particulars of "instances" requested in the letter to which we have referred.
7. The names of the individual successful candidates are sought, as it was explained to us by Mr Uruakpa who appeared and presented the case to us today on his wife's behalf, so as to be able to make individual approaches to the candidates who had been successful and attempt to produce them in person before the Tribunal by Witness Summonses, if necessary, so as to be able to demonstrate to the Tribunal that their English language skills were no better than those of the Applicant herself. As we understood it from Mr Uruakpa, what he envisaged, since he did not know the identity of any of these individuals and was therefore quite unable to predict what evidence they might or might not be willing to give, was conducting before the Tribunal itself a re-run of the interviews that they, as well as the Applicant, had taken part in for the job.
8. Since the Respondents have produced details of the actual questions asked to all the candidates and also the individual answers of both successful and unsuccessful candidates, what Mr Uruakpa envisaged apparently, being able to do was (so to speak) to rehearse the actual course of each interview yet again in the hope (and it can be no more) of being able to establish, by the way the successful candidates spoke their lines before the Tribunal, that his wife had been unfairly discriminated against in the matter of her spoken English as compared with those who had succeeded on the selection process.
9. In summary, the point of having the individual names was therefore to be able to demonstrate that the question of language skills was not, in fact, the true reason for the Applicant's failure at interview. That had been asserted in the letter sent to her immediately after the interview, although the Respondents' grounds of resistance later made clear that, so far as they were concerned, there were substantial additional grounds for her rejection as well, in particular the fact that she did not have a RCVS degree. According to the case they seek to present to the Tribunal, that was an essential condition for employment in the capacity of an Official Veterinary Surgeon and it is common ground the Applicant did not have it at that time.
10. The second decision of the Tribunal Chairman was given on 15 December 2000 and is at page 8 of the second appeal file before us (EAT/93/01). That was on an application by the Applicant, Mrs Uruakpa, for very extensive orders for discovery of documents. This was in the following terms, by letter dated 6 December 2000 at page 5, addressed to the Regional Secretary of the Tribunals:

"The Respondent has failed to fully disclose certain documents which are important to the Applicant's case.

Would you please make an Order for Discovery of the following:

1 Names and Professional addresses of candidates successful at interview of 19, 21 January 2000

2 Notes, Memorandum and other Documents relating to this case – schedule 1, part 2

3 Full Application forms & Notes of Interview in relation to candidates A – O with names

4 Full Recruitment Monitoring Progress Report with names 1995-2000

5 Full list of P/OVSs directly employed by the MHS with names 1995-2000

6 Full list of P/OVSs indirectly (by contract) employed by the MHS with names 1995-2000

7 Full list of Trainees at OVS courses with names, race, nationality 1995-2000

8 Prime Minister's letters in relation to the Applicant

9 Ministers letters in relation to the Applicant"

11. On that application, as recorded in the letter sent to the parties on 15 December 2000 (at page 8 of the second appeal file) by the Tribunal, the Chairman declined to make any order for Further Discovery beyond what had already been disclosed by the Respondents.
12. It is common ground that there had already been very substantial Discovery of Documents by the Respondents, in particular those identified in an index which has been helpfully supplied to us and added, at pages 9 to 10 of the second appeal file EAT/93/01. This shows that they had already disclosed, in full, the application forms and notes of interview in relation to both successful and unsuccessful candidates (identified, for the purposes of the documentation, simply as candidates 'A', 'B', 'C' and so forth, down to candidate 'O'). In addition, they had disclosed a document described as "Equal Opportunities Monitoring" which we understand to have been equal opportunities monitoring information showing statistically the extent to which the Respondents had, over a period of time, complied with their equal opportunities obligations in relation to employment. That, of course, is a statistical exercise and not an exercise in comparison between those individuals who may, or may not, have been selected for employment on any particular occasion.
13. Again, the Appellant's case is that the Chairman was wrong not to exercise his discretion to order the entirety of the discovery of documents that had been sought: except that Mr Uruakpa very fairly and properly made it clear before us that no criticism is made of the failure to order Discovery as regards prime ministerial and ministerial letters which are accepted as not having any direct bearing on the proceedings before the Tribunal, or before us; and also, no case is now made on item 2 in that letter which relates to documents which are now understood to be legally privileged as the reference to "schedule 1, part 2" on an earlier list demonstrates.
14. The real issue on both of these applications for Particulars and Discovery is whether the Applicant was entitled to have disclosure of the names of those candidates who had been successful in the interview process, when she was turned down. Those individual names and addresses of the candidates involved have not been supplied by the Respondents on the ground that they are irrelevant to the discrimination issues properly before the Tribunal in this case and are also confidential, so that the Respondent considers they should not be disclosed and should not be ordered to be disclosed.
15. Mr Uruakpa, on his wife's behalf, relied on authority to show us that the mere fact of a document being confidential is not a ground on which disclosure or discovery should properly be refused in Employment Tribunal proceedings any more than in any other legal proceedings before the ordinary courts. He referred in particular to the case of Nasse v Science Research Council [1979] IRLR 465 and to the observations of Lord Wilberforce at paragraph 13.1 that there is no principle of public interest immunity protecting confidential documents such as those with which the appeals before their Lordships were concerned, the confidential documents in those cases being annual confidential reports concerning two colleagues of the lady who had brought the proceedings against her employer before the then Industrial Tribunal. To the same effect he referred us to Lord Salmon at paragraph 36 of the same case, who said that he could not accept the view that the courts had recognised the circumstances in which confidentiality of documents should be so respected that their production should be refused even if by doing so the proceedings might not be fairly disposed of. And Lord Scarman to the same effect at paragraph 81, said he did not find anything in the leading authority of Conway v Rimmer [1968] AC 910 which would extend public interest immunity in the way which it had been sought to assert it in that particular case. That general principle is beyond dispute and is not in any way challenged by the Respondents, who appeared before us by Miss Moore.
16. However, as Miss Moore rightly submitted, the issue of whether public interest immunity applies or not is not the issue in either of the appeals before us. The question is whether the disclosure of the names of these particular individuals and the very substantial extra information and discovery of documents, sought to be obtained in this case, is fairly necessary for a just disposal of the proceedings before the Tribunal. This is not in any way inconsistent with what their Lordships in Nasse's case said, as is made clear by Lord Wilberforce at paragraphs 13.4 and 13.5, where he says:

"The ultimate test in discrimination (as in other) proceedings is whether discovery is necessary for disposing fairly of the proceedings. If it is, then discovery must be ordered notwithstanding confidentiality. But where the court is impressed with the need to preserve confidentiality in a particular case, it will consider carefully whether the necessary information has been or can be obtained by other means, not involving a breach of confidence.

In order to reach a conclusion whether discovery is necessary notwithstanding confidentiality the Tribunal should inspect the documents. It will naturally consider whether justice can be done by special measures such as 'covering up' substituting anonymous references for specific issues, specific names, or, in rare cases, hearing in camera."

17. To similar effect, Lord Salmon at paragraph 38, identified the relevant question for a tribunal as "is discovery necessary for fairly disposing of these proceedings?" and said "if the answer to that question is in the affirmative, as I venture to think it often may be, then discovery should be ordered notwithstanding the documents' confidentiality" and also observed that the irrelevant parts of the document should, of course, be effectively covered up. And Lord Scarman, at paragraph 83 said:

"It does not follow that because we are outside the field of public interest immunity, the confidential nature of documents is to be disregarded by the court in the exercise of its discretionary power to order discovery of documents."

18. That the confidentiality of individual details, such as names and addresses, must be a relevant factor to be considered in the exercise of the court's or the tribunal's discretion is apparent from the passages to which we have referred and that last passage in particular.
19. In the context of employment law it is emphasised again by the decision of this Tribunal, given by Mr Justice Phillips as he then was, in Oxford v Department of Health and Social Security [1977] IRLR 225, where on facts in some ways parallel to those of this case, there was an application for discovery or disclosure of names and addresses of individual successful applicants. As Mr Justice Phillips said, at paragraph 3:

"What Mr Oxford wanted to know was the names and addresses, the sex and the ages, of the successful applicants who were offered or received appointments. In the result - it is not necessary to go through the stages - he was informed of the sex and ages of those persons, but he was not informed of their names or addresses. As that question is likely to arise in other cases, we should say that ordinarily we think it is right on the part of the person being questioned to decline to give the name or address of the successful applicant. To do so is only likely to cause trouble and many applicants who have been successful would not wish the confidentiality of their positions to be disclosed."

And then, further down, on the disclosure to be given of relevant details other than individual names:

"But, speaking generally, we see no reason why such information as to qualification should not be disclosed and we think that it should be. In applications of this kind it is perfectly simple for the identify of the individual to be concealed under a letter – 'A', 'B', 'C', - and for the address to be withheld, but the other information relevant to the particular case to be disclosed."

20. Those observations were made in the context of a discrimination questionnaire preliminary to the actual hearing of the proceedings but, in our judgment, the principles Mr Justice Phillips and the Tribunal there expressed are of equal application where the question is the disclosure of people's names by way of an application for particulars or discovery of documents.
21. That case shows what the normal practice in such matters should be, and that practice appears to have been followed exactly by the Respondents in this case, in the particulars and documents they did disclose, relating to the questions and answers and interview notes in relation to each of the candidates who they have identified only by letter and withholding their names and addresses.
22. It appears to us, as no doubt it did to the Chairman, that the additional particulars and disclosures requested in this case were not necessary for a fair and just determination of the issues raised in relation to this Applicant's rejection on her job application, and that to make the further orders sought on her behalf by her husband, before the Tribunal and now before us, would have been and would be perverse and oppressive.
23. We consider it unfortunate that an ex parte order for all the "particulars" sought appears to have been made on 6 October 2000 in response to the original letter of 23 July 2000, and that this then had to have its scope in effect restricted by more careful consideration by the Chairman on 28 November. The ex parte order dated 6 October 2000 is at page 9 of the first appeal file. The only copy we have is what appears there and that copy gives no indication of the application having been given full consideration by a Tribunal or the Tribunal Chairman, as it ought to have been before any such order was made, and is signed only by an official of the Tribunal Service. It simply purports to direct the Respondent in terms to give particulars "As set out in the applicant's letter dated 23 July 2000 (Copy attached)".
24. We find it extremely difficult to see how an order having such an extremely wide effect could properly have been made by a legally qualified person addressing his mind to the matter, in particular after the Respondents' letter dated 14 August 2000 (at pages 5 to 7 of the same file) which we were assured by Mr Uruakpa had been before the Tribunal along with the application for extended particulars under cover of the Appellant's letter dated 15 September (page 8).
25. However that may be, we consider that the Chairman on 28 November, and in his further order of 15 December, was right to reject the request for further information and documents. We consider that Miss Moore rightly described what was being applied for here as "a fishing expedition" designed to produce additional material to make out the Appellant's case rather than a proper request for particulars of what the case of the Respondents was to be, or a request for documents properly to be regarded as relevant to the issues raised by the Originating Application and the Respondents' answer.
26. We were not, for our part, persuaded by Mr Uruakpa's submission that it was essential for the Appellant's case to have the three successful individuals there before the Tribunal to demonstrate the point that was sought to be made, that the reliance on alleged language deficiencies had been improperly used by the Respondents as a cloak for a racially discriminatory decision against her. The issue of whether her language skills did or did not form part of the decision against her is one on which the Respondents plainly have some explaining to do, given the terms of the rejection letter of 11 February 2000 and the later suggestion that "this was a standard letter and did not address the specific reasons" (page 6) which we find bizarre. However that issue can, in our judgment, be properly and fairly dealt with on the existing material, in particular, the interview notes of all the candidates which should of course indicate any particular language difficulties recorded at the time.
27. We do not accept that the Appellant's case would be fatally undermined without the additional information of who those individual candidates were. It will, of course, be a matter for the Tribunal to evaluate what is, on any footing, a substantial body of documentary and other evidence and to determine whether the reliance on language, in the letter of rejection which we have been shown, was a genuine reason or a pretext and whether the additional factor of the Applicant not having the RCVS qualification was explained to her in the course of the interview itself, as had been asserted in the letter of reply by the Respondents.
28. The Tribunal will be able, in our judgment, to draw whatever inferences are proper on the totality of that evidence, and we do not accept that such evidence will be insufficient for proper inferences to be drawn one way or the other without the names of the individual successful candidates.
29. We have reached a similar conclusion as regards the information about the details of confrontations in slaughterhouses between slaughter house operatives and members of the Veterinary Service. Here, the onus is on the Respondents to establish their case as set out in paragraph 7 of their answer, to which we have already referred, as to the necessity for fluent spoken and written language skills as an essential criteria for the post because of the potential (and we emphasise that word) for conflict or confrontation in the course of doing the job and the other reasons set out in paragraph 7 of the answer.
30. Again, we cannot see that the Tribunal Chairman was wrong in declining to order the much more extensive particulars requested, and we are satisfied that issue can be properly addressed by the Tribunal on the existing particulars and information disclosed.
31. The other additional information sought on the application for discovery really boils down to the information requested about all the employment details of persons at present employed as Official Veterinary Surgeons directly or indirectly by contract, or selection of persons for trainees at OVS courses, with names, over the full period of five years from 1995 to 2000. The names of the successful candidates have also been requested on discovery. Our conclusion on that aspect of the matter is the same as it is on the other appeal relating to the particulars, that these were not necessary for a proper determination of the issue.
32. On the employment and other details apart from the names it is important to understand the nature of the equal opportunities monitoring information, which has been supplied, against which it is sought to test the additional material requested on behalf of the Applicant. As it was put to us in argument by her husband on her behalf, Dr Uruakpa wants the full employment details of all these people over the full five-year period as she and her husband "want to assess the nationality of those who have been employed in order to try and detect any acts of racism in the way those people have been recruited".
33. Given the statistical nature of equal opportunities monitoring material (which is concerned with the general pattern of how an organisation improves or fails to improve its equal opportunities profile, and is not concerned with individual cases) we were not satisfied that the facts, details and names of individual cases of individual people employed over the whole five year period would, in fact, have been of any assistance to the Appellant in this or in evaluating the validity of the statistical monitoring process. But however that might be, such a wide-ranging request can in our judgment quite properly be regarded as within a Chairman's discretion as oppressive in the circumstances of a case such as this one, and we have been unable to see any ground for interfering with his discretion, as exercised in his decision of 15 December 2000 not to order the substantial additional material sought.
34. Accordingly, we have concluded that the Chairman came to the right decision on both of these applications. There are no grounds for interfering with what appears to us to have been a proper exercise of discretion on both occasions and we accordingly dismiss both of the appeals before us.