United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Applicant	MR A J ENGEL (the Applicant in Person)
For the Respondent	MISS PEACOCK (Solicitor)


 


HIS HONOUR JUDGE PETER CLARK

1. On 1 April 2003 the Registrar directed that under Rule 3 (7) of the Employment Appeal Tribunal Rules of Procedure, no further action should be taken on the Notice of Appeal lodged by Mr Engel (PA/0345/03/SM) in this matter of Engel v BPP Law Courses Ltd, currently proceeding in the London (Central) Employment Tribunal. Dissatisfied with that ruling the matter has now been referred to me under Rule 3 (10).
2. The background is as follows. The Applicant was employed by the Respondent law school as a part-time freelance tutor. He was so engaged for the academic years 1997/8 to 2001/2. Having been told that that arrangement would not continue into the 2002/3 academic year the Applicant presented an Originating Application to the Employment Tribunal alleging both racial and sex discrimination. He is a Jewish male. The claim is resisted.
3. On 13 December 2002 a Chairman, Mr B C Buckley, sitting alone at London (Central) Employment Tribunal, gave directions for the future conduct of the case. Within the directions order, issued on 31 December, following that hearing, at paragraph 2, was an order for mutual discovery by list of documents relevant to the issues by 10 January 2003, with inspection 14 days thereafter. It was further agreed between the parties and the Chairman directed that the Director of Vocational Training at the relevant time, Mr Carl Lygo, should serve and lodge with the Employment Tribunal a witness statement verifying the circumstances in which information relating to student feedback about the Applicant's teaching of the LPC course for 2000/01 had been compiled and disclosed to the Applicant in October 2002, stating what had become of the student feedback material said then to be no longer available.
4. Mr Lygo lodged his witness statement on 10 January 2003. In summary it comes to this: having received student complaints about the Applicant's teaching of the LPC course (a course followed by students wishing to become trainee solicitors), Mr Lygo sent out a feedback form to students on the quality of their tutors' teaching.
5. When the forms were returned Mr Lygo created a selective list of comments by students of Mr Engel on his computer. He also recorded the average grades, on a scale of 1-5, given by students in respect of their tutors. That material was then stored on the hard drive of his computer and hard copy placed in a filing cabinet. The original material from the students was shredded.
6. In February 2001 students completed a further feedback form; the results were averaged out for each tutor and recorded. Again the original student material was shredded.
7. In the summer of 2001 Mr Lygo's computer hard drive crashed, wiping out the information stored. It cannot now be retrieved.
8. However, Mr Lygo subsequently discovered hard copies of the documents which he had generated during the year 2000/2001. They are:

(1) Mid-term compulsory feedback 2000/2001. The document found by Mr Lygo shows the names of 30 tutors; their average score in the range 1-5 and the number of questionnaires returned by students in respect of each tutor. In that league table Mr Engel came last with an average score of 1.2; the next lowest tutor scored 3.2. 137 students returned questionnaires relating to Mr Engel, higher than any other tutor. I shall refer to that as "Document A".

(2) Selected comments on Mr Engel drawn by Mr Lygo from the individual tutor feedback by students ("Document B"). Those comments are less than flattering.

(3) The final feedback table on the LPC course after Mr Lygo replaced Mr Engel in delivering that course ("Document C")

I should add that normally Mr Engel taught the BUC course to potential trainee barristers.

9. What happened was that in the interests of confidentiality the form in which that material in documents A and C was disclosed to Mr Engel involved the substitution of numbers in the league table documents for the individual tutors there scored.
10. In these circumstances Mr Engel took the following procedural steps. By letter dated 3 February he applied for the Respondent's Notice of Appearance to be struck out in whole or in part, and for the Respondent to be debarred from defending, for breach of the original directions order issued by Mr Buckley on 31 December.
11. The Respondent's solicitors opposed that application by letter dated 10 February, in which the solicitors overlooked the fact that the identities of the tutors listed in the documents A and C (other than the Applicant and Mr Lygo) had been concealed, as Mr Lygo had explained at paragraph 14 of his witness statement. Having considered that correspondence Mr Buckley, on 13 February, declined to order a hearing to consider the strike out application.
12. On the same day the Applicant wrote to the Employment Tribunal, pointing out the discrepancy between the Respondent's solicitor's letter of 10 February and paragraph 14 of Mr Lygo's witness statement, requesting an order for inspection of the non-redacted documents.
13. On 26 February the Respondent's solicitor wrote to the Employment Tribunal acknowledging the earlier error, relying on Mr Lygo's evidence and submitting that it would be inappropriate to disclose the non-redacted documents A and C. By letter dated 28 February the Chairman accepted that submission and again declined to order a strike-out hearing, ruling that disclosure had been properly dealt with.
14. Against both the Chairman's orders of 13 and 28 February Mr Engel launched this potential interlocutory appeal. In giving her direction under Rule 3 (7) the Registrar referred only to the order of 13 February. She detected no question of law raised in the appeal. Hence the matter now comes before me.
15. Mr Engel acknowledges that the question initially for me is whether the Notice of Appeal raises any question of law giving the Employment Appeal Tribunal jurisdiction to entertain the appeal under section 21 (1) of the Employment Tribunals Act 1996. He submits that it does.
16. This morning Ms Peacock appeared to observe on behalf of the Respondent. It occurred to me a short way through Mr Engel's submissions in the Rule 3 (10) application that the sensible course, bearing in mind the nature of this appeal, was to adjourn the matter until this afternoon, both parties being content with that course, so that the matter could be fully ventilated as a full interlocutory appeal hearing. The matter duly resumed and I heard submissions on the substance of the appeal.
17. The first matter to be dealt with concerns the comments document (Document B), which appears in the supplementary bundle at pages 2 and 3. As to that, the Respondent consents to the Applicant inspecting the original document on which those pages are based, by 5.30 p.m. on 16 April, at the Royal College of Surgeons or such other venue as may be agreed between the parties. That is a course to which both parties consent and in these circumstances it is unnecessary for me to do more than record that consent agreement.
18. As to the two league tables, at pages 1 and 4 respectively of the supplementary bundle (Documents A and C), again there is a degree of agreement as to how this matter should proceed. Mr Engel's first concern is whether those documents truly reflect the original documents (the non-redacted documents), which bear the names of the tutors. It is common ground that that concern can be resolved simply by this appeal coming back to me on Wednesday 16 April at 9.00 a.m., at which time Ms Peacock will be in a position to produce the original documents for inspection by me, in order to ascertain whether pages 1 and 4 truly reflect what is contained in the originals.
19. Secondly, as an alternative to his third submission to which I shall come, Mr Engel invites the Respondent to apply, by way of consecutive letters, identifying marks for each of the tutors listed both in the mid-term league table and in the final league table. No difficulty arises over that, the purpose being to see where the overlap exists between those tutors listed in the first and those listed in the final league tables.
20. Further, he has asked and Ms Peacock has no objection, to the sex of each of those tutors being identified in the further document. Nothing further arises under this head of submissions.
21. The final matter, where the real dispute lies, is concerned with the question as to whether Mr Engel ought to be given disclosure of the original list complete with the names of the individual tutors. He has referred me to the judgment of the House of Lords in Nassé v Science Research Council [1980] AC 1028 for the proposition that confidentiality (relied on by the Respondent in this case) is not a complete answer to the question as to whether disclosure is necessary for the fair disposal of these proceedings. He submits that it is necessary for him to have access to the names of those tutors so that he can make further enquiries.
22. Ms Peacock opposes such disclosure. She argues that the identity of the lecturers need not be disclosed in order to dispose fairly and proportionately of this matter. She submits that knowledge of the identity of the lecturers will not legitimately advance the Applicant's case. Really this is simply a fishing expedition designed to pursue avenues of enquiry which are not relevant or necessary for determining these complaints of race and sex discrimination.
23. On this part of the appeal I prefer Ms Peacock's submissions. Relating that back to the matter under appeal, it seems to me that, insofar as the Chairman in his order of 28 February, ruled that confidentiality of individual lecturers identities ought properly to be preserved. I uphold the order to that extent.
24. Otherwise, all other matters appear to have been resolved by agreement, subject to inspection by me if necessary on 16 April.
25. In these circumstances the appeal is formally dismissed, subject to those matters which are now agreed between the parties and which have been recorded in this judgment.