United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	No appearance or representation by or on behalf of the Appellant
For the Respondent	No appearance or representation by or on behalf of the Respondent


 


SUMMARY

After considerable slimming down at the expedited preliminary hearing, an Amended Notice of Appeal was not in the event opposed. Chairman erred in refusing all particulars and most of disclosure sought (but understandably in light of sledgehammer approach)


 


THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1. This has been the full hearing of an appeal by the Applicant, Mr Ali, against an order made by the Chairman alone, Mr Twiss, at an Employment Tribunal in Southampton, following a case management conference. That order is recorded in a document sent to the parties on 21 April 2004. Extended Reasons were given on 11 May 2004, and a clarification, or variation, of the order was sent to the parties on 17 May 2004 by letter sent on behalf of the Regional Secretary, recording a decision of Mr Twiss.
2. The interlocutory hearing related to a claim by the Appellant for race discrimination against the Respondent, by whom he continues to be employed, which was then fixed for hearing before the Employment Tribunal on 14 July 2004. The Employment Appeal Tribunal had dealt with the matter by way of expedition because of the imminence of that hearing, although in the event it has now been adjourned.
3. The appeal was put on four bases. It is always difficult, as a matter of law, to mount an appeal against decisions which are effectively case management decisions by a Chairman for the purpose of preparation of an Employment Tribunal hearing, but there is no bar on such appeals, provided that they can be well founded in law, and of course it is very often more sensible, if it can be done, for such an appeal to be brought on before crystallisation of the case at the Employment Tribunal, rather than afterwards when time and costs may have been wasted.
4. There were four matters that were raised by Mr Ali, which were the subject of a Notice of Appeal, which came on pursuant to an order for expedition by Beatson J, dated 14 June 2004, for a preliminary hearing on 7 July last. The order was varied by me prior to the hearing, to provide for the possibility of inter partes hearing of the preliminary hearing, in the hope that the matter could be dealt with fully on 7 July, but, in the event, notwithstanding best efforts on the part of the Respondent's solicitors, they were unable to be here or be represented by Counsel - indeed there appears possibly to have been a breakdown in communication between them and the Employment Appeal Tribunal - and so that matter came on ex parte, pursuant to Beatson J's order on 7 July as originally intended.
5. At that hearing, Mr Ali had the undoubted benefit of representation by ELAAS, namely by Mr Andrew Burns, of Counsel, with whose considerable help the case was very substantially slimmed down, with the involvement and the approbation of Mr Ali, and an Amended Notice of Appeal prepared, and it is that Amended Notice of Appeal which was sent on for a speedy full hearing and has come on before me today.
6. In the circumstances of the order eventually sought by reference to that Amended Notice of Appeal, the Respondent has confirmed, by letter dated 9 July, that it would not be opposing the appeal as detailed in the order attaching the Amended Notice of Appeal, and consequently would not be attending. In the light of that, the Appellant was told that he also did not need to attend, as the relief that he sought in his Amended Notice of Appeal was not opposed, and so this hearing is now taking place on the basis of consideration of the papers, and without further benefit of oral submissions.
7. The Appellant originally appealed, as I have indicated, in respect of four matters, the first of which was not pursued before me and does not feature in the Amended Notice of Appeal, namely a complaint at the refusal of the Chairman to order that the Employment Tribunal hearing be tape-recorded. That it is sensible, indeed, that the appeal in that regard should not be pursued, was plainly a matter for the Employment Tribunal, which could not possibly amount to something capable of being challenged in law.
8. That apart, the original appeal and the now amended appeal, falls into three categories. An appeal in respect of refusal of disclosure; an appeal in respect of the limitation imposed by the Chairman in his letter, to which I have referred, dated 17 May 2004, with regard to certain disclosure that he did order, and an appeal against the refusal of an application for further and better particulars. I shall take those three in turn.
9. There has here been a race relations questionnaire served by the Appellant and answered by the Respondent. The case made, whatever its merit may eventually have turned out to be, by the Appellant against the Respondent, is that a procedure, effectively by way of what might in loose terms be called putting the Appellant on report, called a "Restoring Efficiency" process", was invoked on 18 November 2002, and subsequently discharged in October 2003. The Respondent alleges that it has internal procedures for dealing with poor and/or inefficient performance, known as "Restoring Efficiency", that the Appellant was put on a final written warning under that procedure, and that consequently that procedure having been properly operated, he was taken off it when he had successfully passed the review in October 2003. The Appellant submits and asserts that putting him on the review was both unjustified and discriminatory on racial grounds. It was to that issue that the questionnaire was directed, and substantial answers were given by the Respondent.
10. The Appellant sought, however, at the interlocutory hearing to which I have referred, a very lengthy list of documents by way of specific disclosure. As it turns out, some eighteen of those categories have been voluntarily given by the Respondent, in any event. Four of the items were ordered by the Tribunal, the fourth of which was paragraph 24 of Appendix B, to which I shall refer later when I come to the second issue, but the Tribunal declined to order any other of the very substantial categories. It does appear to me that the Appellant's application was, to put it at its lowest, a sledgehammer to crack a nut. The Appellant was unrepresented, and consequently had reached his own judgment as to what he considered to be relevant. It may be that he genuinely thought that all these categories were relevant. On the other hand, it may be part simply of a misconceived tactic, believing that the proceedings were obliged to be, or at any rate entitled to be, more prolix and complicated than in fact they need to be.
11. But it is at any rate clear to me that the very service of a massively overblown schedule on the one hand detracted from the Applicant's desire and expectation of getting that which he really needed, and indeed also put at risk the hearing date which he certainly did not want to see adjourned. In the event, of course, it has been adjourned and one cannot help feeling that had he restricted his application to something much more slim, (a) he might have got what he asked for, and (b) there might well not have needed to be, or been, an adjournment.
12. With the assistance of Mr Burns of Counsel, the remaining thirty items on the schedule were very much slimmed down and vast numbers of them abandoned. The item that in the end was sought was simply what had been paragraph 20 of the schedule; whereas the Applicant did make out a case for paragraph 13, he accepted that it appeared that that document was no longer in the possession, custody or power of the Respondent, and did not pursue it. But all the other matters were abandoned. I am satisfied that it is right that there should be an order for disclosure in respect of that one item, as described now in B(1) of the Amended Notice of Appeal.
13. Insofar as there is an error of law on the part of the Tribunal, which there needs to be, notwithstanding the lack of opposition now by the Respondent to this slimmed down appeal, it is that the Tribunal, in my judgment perfectly understandably, did not go through each item to explore whether each was relevant for the purposes of disclosure, and had they done so, they would have found that at any rate this one item was plainly relevant, for the reasons which were explained to me at the preliminary hearing. Had the original application been limited to that one, or possibly one or two other categories, that very course might have occurred; by virtue of the sledgehammer approach, the error effectively was caused by the procedure adopted by the Appellant, but nevertheless, in my judgment, error it was, in not considering and, in the event, ordering a disclosure of that document.
14. I turn to what was in fact item 24 of the schedule, relating to log books and notes of meetings. What the Appellant alleges is that in the notes of meetings, either recorded in separate notes or the log books, there were, or may have been, explanations given which he believed may be helpful to him, but on the other hand, of course, may be helpful to the Respondent, of why it is that he was put "put on report", as I described it, in November 2002. A case, and an understandable one, was made out by the Respondent before the Tribunal that to order the disclosure originally sought by the Appellant, which was dateless in time, would involve a mammoth amount of work, scrabbling through handwritten documents to see if reference to the Appellant could be found, and so it was perfectly sensible of the Tribunal to limit the period of time in relation to which this intensive review would have to be carried out by the Respondent.
15. In the letter of 17 May, to which I referred, the Regional Secretary's representative wrote as follows:

"The Order stands. The Managers will have to review their methods.

The period of review (and of production of relevant documents) is, however, to be limited to January 2003 to 22 October 2003."

In his Amended Notice of Appeal, Mr Burns explains in paragraph 3 the way in which the case is put in this regard.

"The Chairman erred in law or in principle, or reached a perverse conclusion in restricting disclosure of log books or meeting notes relating to the Applicant, to the period of January 2003 to 22 October 2003. The Applicant's complaint is that the Respondent discriminated by placed him on the Restoring Efficiency procedure, and so in principle the time period most relevant to the Tribunal's enquiry would be that leading up to the institution of the procedure on 18 November 2002, not the period after the procedure had been imposed"

I agree, and consequently order what in any event is unopposed, namely that the period of intensive review should not be that which was indicated by the Tribunal, but the period between 1 April 2002 and 30 November 2002, and I make the order set out in B(2) of the Amended Notice of Appeal.

16. I turn then to the third issue. Once again, the Appellant may have been his own worst enemy, in the way that he put forward a lengthy request for particulars in Appendix A. It does not take into account the limited nature of requests for particulars, particularly close up against a hearing.

(1) They are not intended to be a substitute for witness statements, and certainly are not intended to render pleadings complex and verbose, such as they often are in the High Court.

(2) Many questions which a party would like to ask of the opposite party either are better waited for until after the witness statement, to see whether they appear in such witness statements, or possibly even kept in hand for cross-examination. The only particulars that are sensibly required are those to enable a party to understand in general terms the nature of the case it has to meet.

(3) Requests, in any event, cannot be sought of the questionnaires, but only of the Originating Application.

17. All these problems were recognised by Mr Burns as infecting the lengthy request that his client had originally served and sought from the Tribunal, and those defects have been addressed by him in the slimmed down version of the Request for Further and Better Particulars, which emerged after the preliminary hearing, into the Amended Notice of Appeal.

The way the case is put is in paragraph 1 of the Amended Notice:

"The Chairman erred in law or in principle by failing to order particulars that were necessary and proportionate for the fair preparation of the case and the avoidance of an adjournment. The Chairman erred in law by refusing all the requests on the grounds that most related to matters of evidence. The Chairman ought to have refused those which requested evidence and allowed those which requested necessary particulars of vague allegations"

Again I agree and make the order as set out in paragraph A1, 2, 3, 4, 5 and 6.

18. I have not been addressed by either party as to the timescale within which either the particulars should be supplied or the disclosure given. Now that the Tribunal has been adjourned, a more extended timescale can be permitted, although clearly it is to be hoped that the Tribunal will restore the hearing as soon as possible. The time I order for the service of particulars and the giving of the disclosure is 28 days from today, that is the date of this sealed order, with liberty to either party to apply on notice, if that is not a time either which appears fair to either of them or which coincides with the adjourned hearing of the Employment Tribunal if, unknown to me, it has already been fixed.