T Spencer v GlaxoSmithKline Services Unlimited: 2302962/2023

EMPLOYMENT TRIBUNALS
Case No 2302962/2023
Between
Thomas SpencerClaimantGlaxoSmithKline Services UnlimitedRespondent
Before
Employment Judge G PhillipsIn person for claimantDate 6 June 2024

JUDGMENT

For the reasons given below, the Claimant’s application for a specific disclosure order is refused.

REASONS

Conclusion

[1]This was a preliminary hearing to consider the Claimant’s application for a specific disclosure order.[2]I had before me a Hearing Bundle, prepared by the Respondent, which contained all the relevant procedural Tribunal documents and correspondence (the pages numbers of which are referred to hereafter as [xx]).

Introduction

[3]The Claimant was employed, most recently as Assistant General Counsel, by the Respondent from 19 April 2004 until his resignation on 16 February 2023. He was a senior lawyer in the Dispute Resolution and Prevention team in the Respondent’s Legal and Compliance function. He is a qualified barrister. The Respondent is a subsidiary of GSK plc, a FTSE 100 company listed on the London Stock Exchange, which is a global biopharma company headquartered in the UK. The Claimant, by his ET1 and Particulars of Claim [2-21], brings claims for constructive unfair and wrongful dismissal (breach of contract).[4]The Claimant says he was subjected to an unfair and flawed disciplinary investigation process which was contrary to the Respondent’s disciplinary policy and to the ACAS Code. In particular, he says, the Respondent failed to carry out an investigation that was fair and reasonable in all the circumstances, including (so far as relevant for the purposes of this application) providing to the Claimant in advance of his disciplinary hearing, all the written and other evidence, including witness statements, full notes or verbatim accounts from other witnesses, which it had gathered during the course of its investigations and which the Claimant had requested. The Claimant says, as far as his wrongful dismissal claim is concerned, that the Respondent fundamentally breached the implied term of trust and confidence as a result, inter alia, of the matters listed above and that, in response to this, under cover of an email to the Respondent dated 16 February 2023, he accepted the breach and resigned with immediate effect.[5]The Respondent, through its ET3/Grounds of Resistance dated 3 August 2023 [22-43] denies that the Claimant was constructively unfairly dismissed and/or wrongfully dismissed, as alleged or at all. It says that the investigation and disciplinary processes were thorough, fair and reasonable in all the circumstances. The Respondent contends that the Claimant did not resign because of his “fundamental loss of confidence in GSK” or any alleged breach by the Respondent (whether of the implied term of trust and confidence or otherwise), but did so in order to circumvent any adverse finding being made against him as a result of the internal disciplinary procedure and the potential impact an adverse finding could have had on his future employability. Procedural history[6]On 6 July 2023, this case was listed for a 1 day hearing, on 15 December 2023; standard case management directions were given. On 14 July 2023 (and subsequently), the Respondent asked for 2 additional days for the full merits hearing. The December hearing was eventually relisted, for 4 days, starting on 4 June 2024. The parties complied with the standard directions.[7]On 2 March 2024, [48-57] the Claimant wrote to the Employment Tribunal to make an application for specific disclosure (citing Rule 31 of Schedule 1 to the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 (the “ET Rules”)). He requested: “all documents that are referenced by and/or are ancillary to the Investigation Report and which include, but are not limited to, interview notes, meeting notes and any other documents that formed the background to the Investigation Report but were not included in the Investigation Report.”[8]On 15 March 2024, [58] the Respondent replied to this request raising objections to the application: “ … the Respondent has disclosed to the Claimant all documents that are relevant to the issues in dispute and not privileged. Save for those documents disclosed to the Claimant, the Respondent has not identified any other disclosable documents (including, for the avoidance of doubt, notes of any interviews conducted with witnesses during the Investigation). The Respondent has clearly taken all necessary steps to comply with its disclosure obligations. To the extent that the documents requested by the Claimant exist and are disclosable, they have been disclosed. In the circumstances, the Respondent contends that the Tribunal should not grant the Application.”[9]On 26 March 2024, [61] the Employment Tribunal, (EJ Phillips) ordered, on the papers, the specific disclosure sought by the Claimant on the (what subsequently turned out to be erroneous) basis that no objection had been received from the Respondent to the Claimant’s application of 2 March 2024. (Unfortunately, the Respondent’s email and letter of 15 March had not made it on to the Tribunal file.)[10]On that same date, [63-64] the Respondent wrote referring to its letter of 15 March and requested that the Tribunal:(i) reviewed the Respondent’s objections to the Claimant’s application; and(ii) reconsidered its decision to grant it. The Respondent contended that this was in accordance with the overriding objective, including “in particular the need to avoid unnecessary formality and seek flexibility in the proceedings”. The Claimant renewed his application [63]. On 28 March 2024, [68] the Tribunal ordered a preliminary hearing for Wednesday 24 April 2024 to deal with the parties’ dispute on disclosure.[11]On 27 March 2024, [75] the Claimant responded to the Respondent’s letter of 26 March. In particular, he raised a number of questions of the Respondent, with regard to clarifying the disclosure exercise it had undertaken: “However, given the lack of clarity, indeed positive ambiguity, in the position you are adopting it is right you should make your and your client’s position clear now and in advance of exchange of witness statements: it isn’t good enough just to say that in your search ‘the Respondent has not identified any other disclosable documents (including, for the avoidance of doubt, notes of any interviews conducted with witnesses during the Respondent’s investigation into the concerns raised in relation to the Claimant’s alleged conduct during a work event)’. With relation to the documents which are currently the subject of the Tribunal’s Order please make clear in relation to each category of document:- 1. Whether such documents have existed but no longer exist, identifying them individually. 2. Set out what has become of each and every document which falls into this category and set out in relation to each what has become of them such that they no longer exist. 3. Explain how or why it is (if it be the case) that in the alleged extensive investigation conducted by your clients with regard to the facts surrounding my suspension and subsequent resignation, no documents of the kind set out in the Tribunal’s order were brought into existence by either the relevant witnesses or by those involved in your client’s investigations? 4. In particular explain why or how it is, if it be the case, that you or your clients no longer have in their possession:• ‘Copies of all the interview notes, meeting notes and other notes, referenced in the investigation report’• ‘Copies of all interviews, meeting and other notes that formed the background to the investigation report; which have not already been provided’. Please note, for the purposes of point 4 above “meeting notes” includes, but is not limited to, those with the reporter on Friday 11th November 2022, Wednesday 1st December 2022 and Tuesday 10th January 2023. As you know the notes or summaries of these meetings were not included in the Appendix to the Investigation Report, unlike that of the meeting with the Reporter on the 9th November 2022 which was included. You also know that the meeting on the 10th January 2023 is referenced 4 times on page 8 of the Investigation Report and is relied upon by your clients. Since February 2023 and despite multiple requests your client continues to provide no legitimate reason as to why these documents, to the extent they exist, have not been provided to the claimant. Your response to the Tribunal’s Order leaves these important questions entirely unanswered; for the avoidance of doubt therein lies the inherent ambiguity or lack of frankness as to your and your client’s position. The situation with regard to these questions and the answers to them should be made clear now rather than be the subject of lengthy investigation in cross examination of your witnesses, or of submission to the Employment Judge at the Tribunal hearing.”[12]On 22 April 2024, [77], in a letter that Mr Spencer described as “astonishing”, the Respondent replied to say that following receipt of the Claimant’s letter of 27 March, it had “conducted several additional checks in respect of any witness meeting notes taken as part of the investigation related to your alleged conduct at the 2022 Litigation Summit.” The additional checks which the Respondent said it had conducted, were set out in more detail: 1. The Respondent contacted Eversheds Sutherland LLP to understand whether they held any notes in respect of the witness meetings. Eversheds completed a review of their document management system and [RW]’s inbox (noting that [RW] is no longer employed by Eversheds). As a result of this exercise, Eversheds identified the attached documentation, which we are providing to you by way of supplemental disclosure. You will note that the attached documents do not reflect formal meeting notes or minutes. These notes were not shared with witnesses, but instead used as a basis to prepare the first-draft witness statements (which were shared with, and subsequently approved by, the relevant witnesses). 2. We have made enquiries as to whether [JB] retained any handwritten notes that she may have taken during the witness meetings. [JB] confirmed that she does not currently hold any documents of this nature. As [JB] is no longer employed by the Respondent, we requested that the Respondent conduct searches for any handwritten notes taken by [JB] at the relevant time and that may have been scanned onto its casefile for this matter. The Respondent has confirmed that no handwritten notes have been scanned onto the relevant case file. 3. [JB] confirmed that the process of capturing evidence from you (i.e. the reported party) and witnesses was different. Specifically, there was a designated note-taker for your meeting ([MG], Associate at Eversheds). As you are aware, [MG] attended the investigation meeting with you and prepared minutes of that meeting. In contrast, there was no designated note-taker for witness meetings. This explains why similarly structed meetings notes do not exist for the witness meetings.[13]A number of additional documents were provided to the Claimant under cover of this letter [79-134]. Mr Spencer also explained during his submissions, that on Tuesday evening, the day before this hearing, he had been sent a further batch of some 50 odd pages of draft witness statements.

The relevant law

[14]The main purpose of the disclosure stage of the litigation process is to enable the parties better to evaluate the strength of their and their opponent’s case in advance of the trial. The parties have to reveal to each other the documents which have a bearing on the disputed issues in the case (my emphasis added).[15]The power to order disclosure is discretionary. (In Sarnoff v YZ, [2021] EWCA Civ 26, the Court of Appeal held that the power of the employment tribunal to make disclosure orders against parties was derived from its general case management powers under Rule 29, and that Rule 31 was concerned only with disclosure against non-parties.) The general wording used by the tribunal when ordering disclosure as part of its case management process, is that documents “relevant” or “relating to” to the “matters in issue” should be disclosed.[16]The tribunal has powers similar to those of the civil court in ordering disclosure and inspection under Part 31 of the CPR 1998. While it may be convenient to use ‘relevant’ as shorthand for documents that must be disclosed, the word ‘relevant’ does not actually appear in Part 31. However, Part 31.6, provides for disclosure of:(a) the documents on which a party relies; and(b) the documents which: (i) adversely affect a party’s own case, (ii) adversely affect another party’s case, or iii) support another party’s case.[17]Disclosure is not, therefore, solely dependent on relevance but rather whether the document is one on which a party relies, adversely affects their own or another party’s case, or supports another party’s case.[18]As far as the CPR have been discussed in the employment context, the Court of Appeal held in Canadian Imperial Bank of Commerce v Beck [2009] IRLR 740 that: “the test is whether or not an order for [disclosure] is necessary for fairly disposing of the proceedings. Relevance is a factor, but is not, of itself, sufficient to warrant the making of an order. The document must be of such relevance that disclosure is necessary for the fair disposal of the proceedings. …. ‘Fishing expeditions’ are impermissible.”[19]Subsequent case law has established, that an employment judge can only order specific disclosure of documents if the document sought is relevant (using CPR 31.6) (if it is not, then it will not be ordered to be disclosed). Where relevance has been determined, it will then be necessary to decide whether disclosure is “necessary for a fair disposal of the proceedings”. The Claimant’s submissions[20]Mr Spencer submitted that, while matters had moved on, in that more documents had been disclosed, matters were still not to his satisfaction. He explained that he had been asking for these documents for over a year. He took me through the correspondence set out above, emphasising where he had been told by the Respondent’s solicitors, Allen & Overy, that searches had been done, that all relevant documents had been disclosed and that no other disclosable documents “(including, for the avoidance of doubt, notes of any interviews conducted with witnesses during the Investigation)” existed. He pointed out that notwithstanding this, twice, further documents had been provided to him. He said he could not be satisfied that all relevant searches had been done, and said the tribunal should not be satisfied either. He pointed out that there were two large firms and a large client involved and described the events as an “astonishing and disgraceful debacle”. He accepted that Beck did set out the test to be applied. He asked that I reinstate my original order and also order that an officer of Allen & Overy provide a witness statement setting out that they have complied with all their disclosure obligations, in order to “give this some teeth” and impose “discipline on the Respondent’s solicitors”.[21]He submitted that but for this hearing and his letter of 27 March, he would never have got to see these documents. He said that given that background, even if there were no further documents, it would not prejudice the Respondent to make the Order and for them to provide a witness statement. The Respondent’s submissions[22]Mr Caiden reminded me what the purpose of today’s application was. He focused on what he said was the key issue in this case, namely that it was a constructive unfair dismissal case. He took me to the Respondent’s draft List of Issues [44] (not agreed by the Claimant) and to the underlying pleadings [19]. He emphasised that the key issues in a constructive unfair dismissal claim were(i) an alleged repudiatory breach by the employer;(ii) as a result of which the Claimant resigned. The crux, he said, is what was in the Claimant’s mind at the time of the alleged repudiatory breach. This was, he submitted, the key context in which this application should be considered. The Claimant complained at the time that the Respondent had deliberately withheld key evidence, but he was unaware of their content at that time and knowing that now cannot make any difference to that state of mind. He reminded me of the Beck test, and of CPR 31.6 and emphasised that it was not just relevance that mattered, but that disclosure must be “necessary for the fair disposal of the proceedings”. In response to the Claimant’s “no prejudice” point, Mr Caiden reminded me that that was not part of the Beck test.[23]Mr Caiden also reminded me that two different sets of solicitors for the Respondent had been involved in this disclosure exercise. The fact is, he said, that whatever had happened, the Claimant does now have all the documents. He said in the circumstances, it would be inappropriate and unnecessary to make the orders sought by the Claimant.

Conclusion

[24]A number of additional documents of the description sought by the Claimant have been voluntarily supplied by the Respondent by way of supplementary disclosure. No specific concession was made before me that these were relevant – indeed on Mr Caiden’s argument they are not relevant, because although he complained at the time that the Respondent had deliberately withheld key evidence, he did not know what was in them when he resigned. I agree with Mr Caiden that the key issues as far as a constructive unfair dismissal is concerned are(i) whether there was an alleged repudiatory breach by the employer; and, if so,(ii) did the Claimant resign in response to that.[25]Documents that are disclosed must be “relevant” or “relating” to the “matters in issue”, in the sense set out in CPR 31.6. To that extent, it is hard to see that these additional documents do advance the Claimant’s case or adversely affect the Respondent’s – other than to confirm that there were indeed other documents in existence which the Claimant was not provided with.[26]However, even if the documents are, to that extent, relevant their existence has now been confirmed, and they have been provided. I entirely accept Mr Spencer’s scepticism around the assurances provided by Allen & Overy, having been told that documents did not exist, additional document have then been produced, on two occasions. I can also fully understand why he still seeks the reassurance of an order for specific disclosure and the additional order against an officer of Allen & Overy. However, applying the Beck test against that background, and bearing in mind what will be key for the purposes of the constructive unfair dismissal claim, I cannot see how making these orders now can be said to be “necessary for the fair disposal of the proceedings”. I was therefore not inclined to make them. General matters[27]You can appeal to the Employment Appeal Tribunal if you think a legal mistake was made in an Employment Tribunal decision. There is more information here: https://www.gov.uk/appeal-employment-appeal-tribunal Date Judgment made: 24 April 2024 7th May 2024 The proceedings are dismissed on withdrawal. No order as to costs