Appeal No. UKEAT/0137/11/ZT
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At
the Tribunal
On
13 June 2011
Before
HIS
HONOUR JUDGE RICHARDSON
(SITTING ALONE)
DR
N BARAHENI APPELLANT
ROYAL
BERKSHIRE NHS FOUNDATION TRUST RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
PRACTICE AND PROCEDURE – Disclosure
The Claimant’s application for disclosure in electronic form of a
large quantity of documents was correctly refused.
HIS HONOUR JUDGE RICHARDSON
Introduction
1.
In these proceedings Dr Narmin Baraheni (“the Claimant”)
appeals against part of an order of Employment Judge Hardwick dated 29 June 2010 in proceedings which she has brought against the Royal Berkshire
NHS Foundation Trust (“the Respondent”). Put shortly, the Claimant renewed at
a case management discussion on 18 June 2010 an application for
disclosure in electronic form of documents that the Respondent had already
disclosed. The Claimant’s application, which had already been refused on
paper, was refused again. In these proceedings she has appealed against that
refusal.
The proceedings before the Tribunal
2.
The Claimant was employed by the Respondent as a staff grade doctor in
the Obstetrics and Gynaecology Department of the Royal Berkshire Hospital in 2003. These proceedings concern events between 2006 and 2008. The Claimant’s case
is that the Respondent discriminated against her on the grounds of race in
various respects. These include failing to support an application to the
Postgraduate Medical Training Board so that she could progress her career to
consultancy, suspending her, disciplining her for allegedly misrepresenting the
notes of a patient, suspending her again by reason of alleged concerns about
her clinical work, requiring her to re-train before permitting her to resume
work, and disciplining her for refusing to do so.
3.
These proceedings began in 2008. The Respondent denies the allegations,
asserting that its treatment of the Claimant was in all respects justified and
in no respects discriminatory. Disclosure took place in March 2010. A
very substantial quantity of documents was disclosed; some 5,000 pages. Some
documents were redacted because they contained confidential information not
required for the purpose of the Claimant’s case. One such example was minutes
of 27 July 2006. These were important on the question of the
application to the Postgraduate Medical Training Board, but they contained
information relating to other quite different matters.
4.
On 6 May 2010, at a time when she was representing herself,
the Claimant requested disclosure of all disclosed documents in electronic
format on a CD/DVD or USB. No particular reason was given. The Respondent’s
solicitors refused the request on the grounds of cost and proportionality. The
Claimant wrote to the Tribunal on 12 May 2010, saying in her email that she had applied to the Tribunal for permission for an expert witness, and
that it was necessary for her to have the documents in electronic format. She
said:
“This request has also been refused for the reason of cost and
disproportionate request. I would like to bring the Tribunal’s attention to
the fact that the request has no cost for the Respondent, as I am sure nowadays
every firm keeps their records in electronic format rather than paper copies,
especially in this case with over 5,000 papers. In addition, I have applied to
the Tribunal for permission for an expert witness, and therefore it is
necessary that I have the documents in electronic format.”
5.
In a later letter dated 18 May 2010, copied to the Tribunal,
she said:
“I am reiterating my previous request that all these documents
must be provided in electronic format. I am sure all documents are available
in this format. Please provide electronic format of the documents without
delay. Considering the large number of documents and the facilities of
electronic format, your refusal to provide the documents on CD/DVD or USB key
is unacceptable and unreasonable. In addition, there are numbered documents
which are highly suspicious of being not genuine, and we must determine their
authenticity before the hearing. I am sure you too, as a professional firm, do
not want to include non‑authentic documents as evidence in hearing
bundles.”
6.
In a letter dated 20 May 2010 to the Tribunal, the Claimant
wrote:
“I am writing to inform the Employment Tribunal that the
Respondent’s refusal to provide the documents in an electronic format
(CD/DVD/USB) is a very unreasonable behaviour. Considering the volume of
documents, which are over 5,000 pages, my request is a reasonable request.
This will help studying the documents and selecting the documents for the final
bundle to take place in a much speedier and reliable way, and help the Tribunal
to assess the case and make decisions in a clear and fair way.”
7.
On 27 May 2010 her application was refused by
Employment Judge Hill, who said simply that disclosure had been made
in paper form; therefore, the duty to disclose had been complied with. Other
applications that the Claimant made were to be addressed at a forthcoming case
management discussion. On 18 June 2010 the Claimant renewed her
application at the case management discussion. She also applied for,
“statistical data regarding the provenance of documentation.” These
applications were refused. As regards the renewed application, the order
reads:
“The application for the Respondent to make its disclosure
already made in electronic form is refused on the grounds that it has already
been refused by Employment Judge Hill [...].”
8.
Later the Employment Judge was asked for reasons; these were -
“The Claimant said there were a large number of documents
including minutes of meetings which she was sure were created after the event.
The internal grievance regarding the application to PMETB is a suspicious
document. She asked for an electronic CD of the documents to be examined by an
expert.
Counsel said it was an outrageous suggestion that documents had
been created.
The Claimant said that the minutes of 27 July 2006 had
been doctored.
I refused application number 3 because I regarded it as
wholly fanciful that a public body, if the Claimant’s allegation was to be
believed, was effectively guilty of forgery and fraud.
The application number 4 was refused because this had
already been refused by Employment Judge Hill by letter of 27 May 2010
on the basis that disclosure in paper form had been made and that the duty to
disclose had been complied with. I wholly concur with that view that the
proper disclosure had already been made.”
9.
The substantive hearing of the case has not yet taken place; I
understand it is now listed to be heard in August 2011.
The Appeal
10.
The Claimant has appealed against the refusal of the Employment Judge to
order electronic disclosure. Her appeal was considered on paper and considered
to disclose no reasonable ground for appealing. However, she asked for a
hearing under rule 3(10), as was her right. At this hearing, which took
place on 4 April 2011, she was represented by counsel. He restricted
his submissions to a single document; namely, minutes of the meeting dated 27 July 2006, the authenticity of which is disputed. On that basis
HHJ McMullen QC ordered a short full hearing of the appeal.
HHJ McMullen QC did not have most of the correspondence which I have
quoted.
11.
The Respondent, taking a pragmatic view, agreed to give disclosure of
the metadata of the minutes dated 27 July 2006, which had been disclosed to the Claimant. After agreement of the terms and conditions for this
exercise, the Claimant’s expert attended on 24 May 2011, received some metadata, and has prepared a report. The Claimant has not disclosed the
report which she has received. She complains that the expert has been unable
to produce a full report because what has been disclosed is not the metadata of
the original document.
12.
The Respondent says the following:
“The original document was drafted by Dr Selinger. He
emailed it to another consultant on or about 1 August 2006. The consultant retained on her computer the email with the copy attachment. It
was the data from her copy attachment that was disclosed on 24 May 2011 to the Claimant’s expert. This shows conclusively that the minutes in their
present form were in existence by 1 August 2006, and disposes of the issue in the case viz whether the minutes were a late forgery; they cannot
be.”
13.
The Respondent, as Mr Burns told me, accepts that the original hard
drive of Dr Selinger may have been kept by the NHS, Dr Selinger
having changed computers and not having kept the file on his new computer; it
is the Respondent’s case that it is not necessary for the fair disposal of
these proceedings that the hard disk should be located, tested to see if it
works, and then inspected, when the metadata from the copy effectively disposes
of the issue in the case.
Submissions
14.
The Claimant, who has appeared in person today, submits that the
Employment Judge’s reasons for refusing her application were misconceived
and inadequate. She criticises the Employment Judge’s comment that it was
fanciful to suppose that a public body was guilty of forgery and fraud. She says
it is not fanciful that the Respondent has altered or faked documents for the
purposes of defending her discrimination claim, and that she requires
disclosure to establish that alteration or faking of documents has taken
place. She further submits that her application was a reasonable,
proportionate and indeed necessary one to do justice in her case. She says
that it was focussed on a particular number of documents (she recalls 28
documents) for which she required electronic disclosure. She submits that
electronic disclosure of the metadata for Dr Selinger’s original document
ought to be disclosed.
15.
On behalf of the Respondent, Mr Burns submits that the application
was bound to fail, since it was a renewed application with no change of
circumstances; that the Employment Judge’s reasons were sufficient; and that
the application now made on appeal for the disclosure of a single document is a
quite different application, which could have been made to the Employment
Tribunal. He submits that no further disclosure is necessary, in the light of
the disclosure of the early copy attachment relating to the minutes.
Conclusions
16.
For the purpose of this appeal I am content to assume that the
Employment Tribunal had power to order disclosure and inspection of the
underlying data held on any computer relating to the disclosed documents; for
example, data showing how and when they were altered. Indeed, the contrary has
not been argued.
17.
The question for the Employment Judge who was first asked to address the
matter was whether such an order was necessary for the fair disposal of the
proceedings, and in reaching that decision it was appropriate to have regard to
the overriding objective set out in regulation 3 of the Employment
Tribunal (Constitution and Rules of Procedure) Regulations 2004.
The Employment Judge who originally dealt with this matter was faced with an
entirely unfocussed application. Although the Claimant has said to me today
that she concentrated her application on a specific number of documents, I can
see no sign of that in her applications which I have read or in any document
produced for the case management discussion. The Employment Judge was asked to
order disclosure and inspection of electronic material relating to the whole of
the Respondent’s disclosure. That was potentially a very time‑consuming
and expensive exercise. It was also wholly unnecessary to further the
overriding objective; I am sure it was not the Claimant’s case that all the
many documents which the Respondent disclosed had been the subject matter of
faking or alteration. The Claimant could not possibly justify inspection of
the electronic material underlying all the documents generated by the issues.
To do so would have been consuming, expensive, unnecessary for the purpose of
expert evidence, and of little value. In my judgment there was only one course
that an Employment Judge could take; it is plain and obvious that the
application had to be refused.
18.
If the Claimant considered that there was a particular document that was
likely to be the subject of faking or alteration, and that inspection of the
electronic material underlying that document would, with the assistance of
expert evidence, establish the falsity of the document, the correct course was to
make an application in respect of that document, setting out her case for the
falsity of the document and the expert evidence required. The same course
would be appropriate if there were several such documents. Wide, generalised
allegations of forgery and fraud against any organisation, public or private,
are inappropriate. They are serious allegations; if they are to be pursued in
any way, including by the use of disclosure and inspection in a special way,
proper details must be given. Unless proper details are given, courts and tribunals
cannot distinguish between a justified application which will be granted and an
unnecessary application causing expense and trouble for no good purpose which
will not be granted.
19.
The Employment Judge who heard the case management discussion would have
been faced with all these difficulties and would have been bound to refuse the
application. In fact, he had a further difficulty: the application was in
essence the same as the application that had been refused by Employment Judge Hill
with no new aspect to it. An Employment Judge does not err in law if he
refuses such an application simply on the ground that it has been made before
and refused.
20.
When HHJ McMullen QC granted permission to appeal in respect of a
single document, the minutes of 27 July 2006, he may have hoped to
provoke what has actually occurred: the disclosure of electronic data relating
to a single document which the Claimant said was faked. In the end, however, I
have to ask whether the Employment Judge erred in law in any way. In my judgment,
though the Employment Judge’s reasons were brief, he was bound to reach the
conclusion he did. He did not have a focussed application before him, and the
application made to him had in substance already been made and refused.
21.
It is, I think, unfortunate that the Respondent has disclosed an early
copy of the minutes rather than the original without making it clear to the
Claimant that this is what it was doing. On the face of it however an early
copy will suffice; if it shows that the document existed by 1 August 2006, it will follow that the allegation of late forgery is not made out. The
Claimant has not been willing to disclose her expert report as it stands; there
is nothing to suggest that the copy disclosed, said to relate to 1 August 2006, is in any way suspicious.
22.
If the Claimant says that there is something suspicious about the copy,
i.e. that there is reason to suppose that it was not brought into existence in
its present form on 1 August 2006, she will no doubt disclose her
expert report to that effect and make a focussed application on that basis to
the Tribunal; but today is not the appropriate occasion to deal with that; all
the more so because the Claimant, representing herself at the moment, is not
willing to disclose her report. The Respondent may be well advised to obtain
the original hard disk and produce it; that is in the end not a matter for me
to judge today.
23.
The short answer to this appeal is that there was no error of law in the
Employment Judge’s decision, which was plainly correct, given the way the
matter was put by the Claimant at the time. It follows that the appeal will be
dismissed.
