United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR N P GANATRA (the Appellant in Person)
For the Respondent	MISS ELEENA MISRA (of Counsel) Instructed by: Messrs Curwens Solicitors Crossfield House Gladbeck Way Enfield Middlesex EN2 7HT

SUMMARY

Practice and Procedure

One point sent from Rule 3 (10) hearing

(1) Once Respondent produced affidavit swearing there are no documents, that exhausts Employment Tribunals rules and Civil Procedure Rules Part 31 procedures, subject to contempt application by Attorney-General.

(2) On reading, by agreement, Respondent's documents, these were legally privileged.


 


HIS HONOUR JUDGE McMULLEN QC

1. This case is about Employment Tribunal procedure in the handling of a request for disclosure of information. I pre-read the relevant papers and I will refer to the parties as Applicant and Respondent.

Introduction

2. It is an appeal by the Applicant in those proceedings against a Decision of an Employment Tribunal Chairman, I understand Miss Lewzey, sitting at London (Central) on 20 February 2003, communicated in a letter of that date, refusing the Applicant's request for disclosure of certain materials. The matter was considered by the Chairman on the papers. The reason was:

"The request is based upon a premise which is unsubstantiated – namely that the respondent has failed to give proper disclosure."

3. The Respondent, as can be seen, indicated that disclosure had been done and the request was inapt. The essential issue, therefore, for the Chairman to decide in the exercise of her discretion was whether to order further disclosure. The Applicant appeals against that Decision.
4. EAT directions were given by His Honour Judge Clark at a Rule 3(10) hearing, sending this appeal to a full hearing on only one aspect. I adopt the account of the proceedings given by him as follows:

"2. The appeal relates first to an order by a Chairman dated 31 January 2004 refusing an application by Mr Ganatra on paper for specific disclosure. The second relates to a refusal by a Chairman by letter dated 20 February 2004 to order a postponement of a substantive hearing then fixed for 22 March and following days. In the event that substantive hearing date has been vacated, I am told on the application of the Respondent.

3. By way of background, I see from the pleadings in this case that the Respondent is a non-profit organisation set up through the Department for Education and Science. The Applicant commenced employment as Executive Manager on 2 December 2002. He was dismissed in June 2003. It is his case that he was dismissed by reason of having made protected disclosures and that this was an automatically unfair dismissal for which no qualifying period of service was required.

4. The Respondent's case, as it appears from their Notice of Appearance, is that he did not make protected disclosures but that in any event the reason for his dismissal was his refusal to attend a 6-month review meeting on 5 June 2003, in circumstances where the Respondent had concerns about his capability to do the job for which he was employed. It is their case that in these circumstances he did not qualify for unfair dismissal protection by reason of the fact that he had not completed 12 months continuous service.

5. The Tribunal initially made an order for standard disclosure and it was following the first disclosure made by the Respondent that the Applicant himself made application for specific disclosure. The response by the Respondent, I see from letters dated 23 January 2004, written two days after a second disclosure list had been served, was that the Respondent had undertaken a thorough search and disclosed all documents in its possession. Copies had been provided to the Applicant. In short, there were no further documents. On the basis of the written representations, the first Chairman refused an order for disclosure.

6. On 11 February Mr Ganatra applied for a postponement of the substantive hearing then fixed for March and also for what he called an issues hearing. I understand that to have been an application for an oral hearing before a Chairman to determine the issue of disclosure. That particular application is not dealt with in the Chairman's letter of 20 February 2004.

7. When the matter came before the Registrar she had before her the two letters setting out the Chairman's orders and the Applicant's notice and grounds of appeal. What does not emerge from the grounds of appeal is what, it seems to me having heard Mr Ganatra's submissions, is the real core of his proposed appeal. That is, the failure or refusal by the Chairman on the second occasion to order a directions hearing to deal with the application for specific disclosure.

8. It seems to me that that issue is one which raises a question of law sufficient to found the EAT's jurisdiction to entertain the appeal. On that ground alone I shall permit the matter to proceed to a full hearing listed for 2 hours. I shall give the usual directions for that hearing to be fast-tracked."

The legislation

5. The relevant provision is Rule 4 (5) (a) of the Employment Tribunals Rules 2001 which provides as follows:

"4 Case management

…

(5) A tribunal may, on the application of a party or of its own motion, -

(b) require one party to grant to another such disclosure or inspection (including the taking of copies) of doscuments as might be granted by a court under rule 31 of the Civil Procedure Rules 1998."

It can be seen that there is a linkage to the powers under CPR Part 31 which I will come to in due course.

The Applicant's case

6. I will state the facts very tentatively in addition to those cited by Judge Clark, as we are still at an interim stage in this case. The Applicant was employed by the Respondent for six months as an executive manager at a salary of £35,000. During the course of his time there the Applicant was concerned about certain matters, left and claimed unfair dismissal on the basis that he had made a protected disclosure, corresponding to the provisions inserted by the Public Interest Disclosure Act 1998 into the Employment Rights Act 1996. They are known as the "whistle-blowing" provisions.
7. As part of the Applicant's case he sought disclosure and indeed gave disclosure of certain materials. The Applicant's contention throughout is that there has been incomplete disclosure by the Respondent. The Applicant considers that the Respondent has acted falsely in these proceedings and he is entitled to obtain proper disclosure without such falsity.
8. The Applicant's central case today is that specific disclosure was refused on the basis of the Respondent's submission that the documents sought were already on the Applicant's list. Secondly, the treatment of his request for disclosure has been unfair in that what was sought was a proper hearing before a Chairman to determine these issues. He contends that he had documents in his possession at one stage during his career, but does not have them now and also that other documents must exist which he has not seen.
9. An affidavit which has been put before me from the relevant officer, Mr Derek Wheeler, sworn on 15 September 2004, is said to be unreliable and is the subject of challenge. There are some subsidiary matters relating to other parts of today's proceedings which will become relevant.

The Respondent's case

10. On behalf of the Respondent, Miss Eleena Misra of counsel has indicated that an affidavit has been submitted and it should be before me today. The original proceedings were due to come on for a full hearing on 16 March 2004 before the Employment Tribunal but they had to be postponed because of illness on the Respondent's side. The sole issue in this case is restricted to that identified by Judge Clark (see the extract above). No issue of bias arises in the Judge's depiction of the issue. The central issue is whether or not there was an error in failing to order an interim hearing to decide upon the documentary issue. There other minor matters to be decided also.
11. The correspondence from the Respondent indicates, at all stages, that it was providing disclosure and, on being reminded that it may not have disclosed correctly, undertook to and did in fact carry out further examination to determine whether any documentation existed. The material which was before the Chairman included, therefore, all of the correspondence including the bilateral dispute, consisting principally of a request of a variation of a prior order dated 23 January 2004 and a request of a postponement of the full hearing pending a justification of the Chairman's Decision of 31 January 2004, dated 11 February 2004. Both of those are the vehicles by which the Applicant's case was put before the Chairman. For the Respondent a number of documents, which I have summarized above, were also put before her.
12. It is contended that the affidavit from Mr Wheeler is akin to a disclosure statement under CPR Part 31 and at one stage during this morning's proceedings the Applicant, it is contended, had accepted that if this had been available at a much earlier stage he would not have had an issue.
13. The case brought by the Applicant involves wide-sweeping allegations of fraud and it is important to put that in context. It is not appropriate to deal with the subsidiary matters, such as an application to strike out.

The legal principles

14. The legal principles to be applied seem to me to be as follows:

(1) Since I am dealing at the early stages of whistle-blowing case, I have to bear in mind that Parliament has decided that special protection applies to whistle-blowers; see the approach to this suggested by Mummery LJ in ALM Medical Service Ltd v Bladon [2002] EWCA Civ 1085, relied on by the Applicant. It is the purpose of this legislation to ensure that people who have discovered, or think they have discovered, wrong-doing should not suffer by drawing it to the attention of the appropriate persons.

(2) The Applicant is a litigant in person and is facing Counsel. It has never been far from my mind during the course of this hearing that that is the position. The Applicant is, form my observation, highly articulate and I very much respect the measured way in which he has carefully put his oral arguments, backing up, as they are, a thoroughly well researched legal argument.

(3) The CPR is relevant to the proceedings since the gateway provided by Rule 4 is into the CPR, and so I will use the CPR where it is of assistance.

(4) The task for the Applicant today is to convince me that the Tribunal Chairman in her discretion in refusing an oral hearing, and I daresay in refusing the application for disclosure, has committed a fundamental error in principle or has considered factors which were irrelevant or has not considered factors were relevant.

Conclusions

15. With those principles in mind, I have decided that the appeal should be dismissed. I accept the arguments, in full, addressed to me by Miss Misra. In my judgment the Decision by an Employment Tribunal Chairman upon this matter was well within the scope of her discretion at an interim stage. She had before her extensive correspondence from the Respondent and a well reasoned argument from the Applicant. There is no requirement for an oral hearing to be conducted. Both parties were given the opportunity to express their positions on paper before the Decision was made, and it cannot be faulted, nor can the fact that it was made on the papers.
16. That ought to be an end to the case because it was the sole issue identified by Judge Clark when he conducted the Rule 3 Hearing on this matter; in other words, whether there was an error in failing to conduct an oral hearing. However, I have taken a more extensive look at this because the core objection by the Applicant is to the way in which the Respondent has conducted the disclosure. It seems to me that the answer is also that the Chairman did not err when she, as a matter of substance, refused the Applicant's request. She has given her reason about the premise which is unsubstantiated because she has held that the Respondent has given proper disclosure.
17. I have seen the material which was available to the Chairman and can see no error in her approach. Furthermore, the affidavit of Mr Wheeler puts the matter beyond doubt. I have decided that it should be adduced today. There is no dispute that it meets at least two of the criteria for such new material to be adduced, under Practice Direction paragraph 8 (2); that is that the material from Mr Wheeler is relevant and would probably have an important influence on the hearing, and it is apparently credible, being sworn as it is. Whether or not, with reasonable diligence, it could have been obtained before the Employment Tribunal Hearing is probably an academic point, there not having been a Tribunal Hearing, but I am satisfied that it is quite appropriate for me to consider the affidavit and the Applicant did not object to that way forward.
18. Mr Wheeler has attested to the fact that having received advice he fully understands the duties of a deponent in a disclosure application under the CPR; and that proper disclosure of the material which it was under a duty to disclose has now been given.
19. The material indicates that there has been no failure to disclose and that ought to be an end of the proceedings. I have fully borne in mind the obligation a court or tribunal has in dealing with a person making claims under the whistle-blowing protection, and also the fact that the Applicant appears before me in person; he is at no disadvantage in so doing.
20. The next issue is for me to deal with the subsidiary points. It was advanced by Miss Misra that I should look at clean copies of the documents, or parts of the documents, which have been withheld on the grounds of legal privilege because they are part of the protection given to communications during the course of litigation. Whether or not this is precisely the correct way is not clear to me, but since both parties accept that a pragmatic solution to this is for me to look at the documents, I will do so.
21. The documents principally relate to minutes of board meetings and operation committee meetings. A number of passages have been blanked out, in respect of which legal professional privilege is claimed, as the material relates to litigation. I am satisfied, having read the unadulterated minutes, that that claim is substantiated and therefore the Respondent's position that legal professional privilege obtains to these passages will be upheld.
22. I have also been asked to consider striking out the Respondent or alternatively restoring the matter to an Employment Tribunal. Both of those submissions I reject as misconceived, for they must be premised upon a finding of a failure to disclose, which I do not make.
23. The disclosure issues in this case are finished and I see no reason now why the parties should not together approach the Employment Tribunal with a five day offer for hearing dates.