United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS INGRID SIMLER (of Counsel) Instructed By: Mr I Hunter Messrs Bird & Bird Solicitors 90 Fetter Lane London EC4A 1JP
For the Respondent	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT


 


MR JUSTICE LINDSAY (PRESIDENT):

1. We have before us, as an interlocutory appeal, the appeal of AIB Group (UK) Ltd in the matter Connaughton against AIB Group (UK) Plc. This morning Ms Simler has appeared for AIB, which is a Bank, and Mr Connaughton, the Applicant below, has written in to say, by his Solicitors, that he will not be attending nor is represented. In effect, he is saving his funds for the main contest rather than for this interlocutory appeal.
2. The history of the matter is as follows. On 4 August 2000 Mr Connaughton launched an IT 1 for unfair dismissal, breach of contract and sex discrimination. He said that he had been employed from 1972 to 5 June 2000. There had been, he said, an incident or a series of them in June 1997 consisting of allegations by a female employee that Mr Connaughton had harassed her sexually. Mr Connaughton had then been suspended. Over a year later, after investigation and disciplinary hearings and appeals, Mr Connaughton was permitted to return to work but under a written warning. He continued to proclaim his innocence of the charges but did return to work. The warning was limited to subsist until December 2000.
3. In August 1999 another incident occurred (or was said to have occurred), thus being an incident during the currency of that first written warning. The allegation was that a number of coarse jokes were told by Mr Connaughton at a dinner which was outside work but with members of his team at the Bank. A woman complained about the jokes. He was again suspended but first, he says, he did not know the nature of the case against him. A disciplinary hearing took place.
4. Mr Connaughton criticises the Bank's procedures but on 27 January 2000 he was dismissed. He appealed but his dismissal was confirmed as a result of the disciplinary appeal. All this is set out in his IT1. He makes a number of complaints in that IT1 but, so far as immediately relevant for present purposes, his complaint included this:

"The Respondent has previously had managers and senior executives who have been faced with extremely serious allegations of assisting tax evasion, kiting and theft. The Respondent's conduct in these circumstances where serious harm could have been done to their reputation was totally different to that faced by the Applicant. In fact such managers were either transferred or left entirely alone. This is inconsistent with the way in which the Applicant was treated and the Applicant will draw direct comparison between his treatment and that of former employees of the Respondent in its branches in Glasgow, Newcastle, Leeds and Coventry."

5. It is to be noted that he does not there identify any individuals. He does not detail any specific treatment accorded to those respective individuals and whilst the word "transferred" suggests that those others may well have been in the Bank's employ at the time, the words "left alone" could cover a situation where those other person's defalcations or shortcomings were discovered only after they had left the Bank's employ. That was the position, then, in the IT1.
6. On 29 August 2000 the Bank lodged its IT3. It did not specifically address consistency of treatment as between Mr Connaughton and other managers but it did urge that such treatment as Mr Connaughton had received was within the band of reasonable responses and to that extent could be said to have put the matter in issue.
7. There was a directions hearing on 21 November 2000. On 30 November 2000 Mr Connaughton's Solicitors described the nature of the discovery or disclosure which they said they needed in respect of the treatment of comparators. They said:

"On the general question of discovery, we require access to the relevant disciplinary documentation with respect to those individuals who have been mentioned within the Applicant's claim with whom he wishes to compare his treatment. These were referred to in paragraph 5 of our client's appeal against his dismissal and the document attached to his appeal letter set out in detail why our client considered that those particular individuals have been given more favourable treatment than himself. They are as follows.

They set out names: Summers, Godfrey, McHale, Connolly, Rafferty, Quaid and Barry.

A little later the Solicitor's letter says:

"Please also confirm what disciplinary action, if any, has ever been taken against any of these individuals and provide copies of any disciplinary letters as evidence of this disciplinary action. Unless your client disputes the version of events given by our client then we will not require discovery of the documentation relating to these particular individuals. If however your client denies the contents of the statement attached to our client's letter of appeal then we will require documentary evidence in the form of investigatory reports and disciplinary letters to establish exactly how these individuals were treated by your client. We will make the appropriate application for discovery depending on your response to this letter."

On 3 January the Bank, inter alia, replied:

"Although we can see that parity of treatment is relevant both to your client's unfair dismissal and sex discrimination claim, the persons your client seeks to compare himself with are not relevant examples. In your client's own appeal document, the allegations he makes against the named persons are not remotely the same type of incidents for which your client was dismissed. All of the allegations relate to fraud or dishonesty which are quite different, save for Mr Quaid where you allege that he was guilty of conduct bringing the Bank into disrepute. Accordingly we believe that your inclusion of these names is an attempt to bring in material to the proceedings which you believe may embarrass the Bank with a view to dissuading them from fighting the case. Our client does not intend to discuss with you the veracity of your client's allegations against those named nor what treatment these individuals received from the Bank as they do not believe it is relevant."

8. On 9 January Mr Connaughton's Solicitors returned to the fray. They say:

"We note that you do not consider that the individuals with whom our client seeks to compare his treatment are relevant examples for the purposes of parity of treatment. With respect, the relevance or not of the comparators is a matter for the Tribunal and not for you. The main issue is the allegation of bringing the Bank into disrepute. Of course, your client's failure to act where such individuals have clearly brought the Bank into disrepute is relevant to the comparison that our client wishes to make. We reject entirely your allegation that our intention is simply to embarrass the Bank with a view to dissuading them from fighting this case and you have no grounds for making such an allegation. Our client is entitled to parity of treatment and he is entitled at the Employment Tribunal hearing to compare his treatment to that of other senior employees who either brought the Bank into disrepute or were accused of the same."

And then, a little later, they say:

"We note that you have failed to deny the allegations that our client has made about the way in which those managers with whom he wishes to compare himself have been treated."

9. On 21 March 2001 an order for discovery was made and, as is quite often the practice in the Employment Tribunal, in the first instance it was an order obtained ex parte. The order said:

"The Tribunal HEREBY ORDERS the Respondent to send to the Applicant's representative on or before 29 March 2001 a list of such of the documents specified below as are or have been in the Respondent's possession or power and to send a copy of the list to this office."

And, it then sets out the nature of the documents and they are:

"The documents identified in the Applicant's representative's letters of 29 and 30 November 2000, copies of which are attached to this Order.

AND on reasonable notice within 7 further days to produce the documents for inspection at:"

And then details are given. On the next page, as is common with these ex parte orders, there is provision to this effect:

"If this order was made in the Respondent's absence, the Respondent may apply to the Tribunal to vary or set aside the order, but must do so before the period for compliance with the order has expired."

And, following up that invitation, on 29 March the Respondent's Solicitors wrote to the Employment Tribunal:

"We would ask that the Tribunal consider whether a short hearing could be set aside to consider whether in fact it is right for there to be an order for disclosure of these matters."

10. On 2 April Mr Connaughton's Solicitors asked that the order made ex parte should stand and that there was no need for a fresh hearing but, nonetheless, a fresh hearing was arranged and on 30 April 2001 there was a directions hearing. A number of issues were dealt with that day. Discovery was declined as to Summers, Rafferty and Barry but discovery was ordered in relation to Godfrey, McHale, Connolly and Quaid. So far as concerns present relevance the order said this:

"In the circumstances he [the Chairman, Mr T.P. Ryan] ordered the Respondent to disclose documents relating to the cases of Mr Godfrey, Mr McHale, Mr Connolly and Mr Quaid. He ordered that discovery should be made by the Respondent by 14 May 2001 by provision of any and all documents in their possession power or control relating to the disciplinary offences or allegations raised by the Applicant in respect of those men."

That had to be done by 14 May.

11. On 30 April a letter summarising the decision given orally at that hearing on 30 April was sent and it was from that summarising letter that I read a moment ago.
12. On 4 May the Bank Solicitors' wrote to the Employment Tribunal with a number of queries. They said:

"We are concerned at the exact wording of Clause 3. We believed that it had been ordered that Discovery should be made by the Respondent by 14 May 2001 of documents relating to the cases of Mr Godfrey, Mr McHale, Mr Connelly and Mr Quaid relating to disciplinary offences including any disciplinary procedure or investigation.

The wording of Clause 3 is such that it would also include any allegations arising post-termination of employment. This is the case with Mr McHale. The circumstances in the case of Mr McHale is that he retired in 1989 and five years later it emerged that there may have been misappropriation of funds by Mr McHale from clients of the Bank. This was then fully investigated by the Bank."

A little later, they say:

"The Bank is happy to disclose documents concerning Mr McHale's retirement and would propose that Ms Peck, the Bank's Head of Legal Services, include in her affidavit confirmation that the allegations were first raised in 1994 and accordingly there could be no disciplinary proceedings taken against Mr McHale. Our clients are concerned, not only at the volume of documentation that would need to be disclosed if the Tribunal states that this investigation material should be listed, but also the fact that this would disclose highly confidential material revealing the modus operandi of the misappropriation of funds. As this cannot assist the Tribunal in considering the question of consistency, we would ask the Chairman to confirm that this is not what is meant by paragraph 3 of the 30^th April letter. We would ask the Tribunal to come back to us as quickly as possible bearing in mind the deadline for the Order of Discovery."

13. On 11 May the Chairman responded by way of a letter from the Regional Secretary and it said this:

"The Chairman (Mr Ryan) has instructed me to inform you that he has read paragraph 3 of the letter again. It is clear and unambiguous and reflects accurately the order for discovery, which he intended to make to enable the Applicant to advance on a proper basis his argument of differential treatment."

14. The next stage then was on 21 May, when there was a Notice of Appeal. I do not need to read out the whole of paragraphs 6 and 7 of the Notice of Appeal but they set out the grounds upon which Ms Simler relies this morning.
15. On 11 June Mr Connaughton indicated in writing to the Employment Tribunal that he, on the appeal, relies only upon the grounds specified by the Employment Tribunal, In effect, as I mentioned, he says that he is saving his limited funds for the main contest rather than for this interlocutory stage.
16. It is tempting to see this as something of a storm in a teacup. The order (and we are only concerned with it so far as it concerns Mr McHale, who is the only person now in issue) relates to documents which are "in the Bank's possession, power or control". That is the first requirement and a second one is that the documents should relate to "disciplinary offences or allegations raised by Mr Connaughton" (and one has to underline the word "disciplinary") and, thirdly, as raised by Mr Connaughton in relation to Mr McHale.
17. It is surely arguable that the word "disciplinary" qualifies both offences and allegations, but, as it seems to us, an offence or allegation can only be "disciplinary" for present purposes if, it is between employer and employee, and hence that the order does not require disclosure in relation either to events occurring after Mr McHale's employment or as to events occurring during his employment but not enquired into or reported on until after his employment had ended. However, one can readily understand some nervousness on the part of the Bank and their advisers because they would very properly not wish to be accused of not fully complying with the order and the order of 30 April speaks of matters "raised by the Applicant in respect of Mr McHale" without specifying whether that raising was wholly in the past or whether it could include any matter that Mr Connaughton raised at any time down to the merits hearing and also the order did not specify where the raising was expected to have taken place. It could even have been some raising by Mr Connaughton orally rather than in writing. Moreover, it is possible that even after he had ceased to be an employee, the Bank may have looked into matters to see what could have been raised as a disciplinary offence or disciplinary allegation, if only the Bank had known of the facts sooner. So we certainly do not criticise the Bank for appealing and we seek to approach the matter as a matter of principle.
18. Mr Connaughton complains both as to sex discrimination and unfair dismissal but, so far as concerns Mr McHale, the complaint can only be one of unfair dismissal so far as relevance is concerned, because, obviously, Mr McHale, being male, could hardly be a comparator for a case of sex discrimination. His complaint is that whereas he, Mr Connaughton, adjudged by the Bank with reference to what the Bank knew about him at the point of dismissal or, alternatively, at the end of his disciplinary appeal process, came to be dismissed or to have his dismissal confirmed on appeal, others in comparable situations were either not dismissed or had their dismissal set aside on appeal and that, Mr Connaughton urges, was notwithstanding that, had they been correspondingly adjudged, their respective offences would have been seen to have been no less bad than those of Mr Connaughton. One has to ask, then, what are the ingredients of a truly corresponding adjudication? As it seems to us, that is quite plain. It would be a situation which referred, and referred only, to the state of knowledge of the Bank at the corresponding point of decision on the Bank's part, a point of time that could not be later than the end of disciplinary appeal process begun against Mr McHale whilst an employee.
19. Thus, so far as concerns Mr McHale, disclosure of documents need not include, but should exclude as irrelevant and as unnecessary for a fair disposition of the case, documents coming into existence after Mr McHale's cesser of employment or, if this is later, at the end of any disciplinary process begun against him whilst he was an employee. Such late documents could not illustrate or throw any real light on the comparison between cases which is the sole purpose of looking at Mr McHale's case.
20. We allow the appeal to the extent that there is to be added to the order of 30 April a qualification that the Bank is to be under no obligation to disclose such, if any, documents relating to Mr McHale as come or came into existence after the cesser of his employment by the Bank or, if this is later, after the end of such, if any, disciplinary process against Mr McHale which had begun whilst he was an employee.