Isonor v Department Of Social Security [1993] UKEAT 429_93_0707

EAT
Isonor v Department Of Social Security
[1993] UKEAT 429_93_0707 · 1993-07-07
MR JUSTICE KNOX: Having dealt with Mr Isonor's first appeal, the second appeal is concerned with EAT/429/93. This is an appeal from two interlocutory decisions by the Chairman of an Industrial Tribunal in proceedings, again between Mr Isonor, as Applicant, and the Department of Social Security, as Respondent, the Industrial Tribunal reference number in this case being 44499/92.The two decisions were given on the 7th April 1993 and the 18th May 1993 respectively. They concern two matters. First, one, whether there should be an order for discovery of all the application forms received by the Department of Social Security in relation to the job application which is the subject matter of this Originating Application. The second was whether there should be a Witness Order on the local Manager of the Department of Social Security in respect of a previous history of non-continuation or withdrawal of particular benefits that Mr Isonor, who is subject to physical disabilities, was receiving. We deal with those two issues separately.First of all on the question of discovery of all the application forms. This arises in an unusual context, as the Chairman of the Industrial Tribunal himself observed. The job application that Mr Isonor made was one that was made by a very large number of other people as well and so large was the number that the Department, for reasons that no doubt seemed good to it, took a fairly radical approach to the problem of reducing the number of applications to manageable proportions. The account that was given to the Industrial Tribunal Chairman on the first of the two occasions we have to consider was this.
"There were 31 posts for which the respondents sought applicants. No doubt as a function of the recession, 516 applications were received. These were sorted and some 395 of them, including Mr Isonor's, met the basic qualifications for the jobs. The only practical method the respondents felt to reduce this enormous number to a manageable shortlist, was by a process which they have described as random sifting. One of the reasons behind this method of selecting a shortlist was to ensure that all candidates had an exactly equal opportunity to compete for the places available for interview."
and then the Industrial Tribunal Chairman goes on to describe what he understood to be how the system, which was clearly based on what he correctly described as a simple lottery basis, was claimed to have been conducted. The exact details of it are not at this stage relevant but, assuming that this system was a genuinely applied one, an assumption which, we would observe in passing, Mr Isonor is not prepared to make, it seems to us plain beyond any sort of argument that the selection process at that stage was one that was driven entirely by chance, which is the effect of a simple lottery, and could not, as a matter of principle be regarded as racially discriminatory. What Mr Isonor is concerned to dispute is whether or not the system was honestly operated or whether, either it was a complete sham from the word go, or it was manipulated, which we suspect is the way he would prefer to describe it, in such a way as to ensure that he, and conceivably other persons, were excluded. Now these are issues, of course, which will fall to be decided when this matter comes to trial before the Industrial Tribunal. The question that we have to deal with at this stage is whether it is necessary for there to be discovery of all the application forms that were received by the Department. Mr Isonor, in common it should be said with the members of this Tribunal, has expressed himself as puzzled by the exact way in which the mathematics of the lottery system work out, particularly in connection with serial numbers that appear to have been attached either to application forms or to letters enclosing application forms and there are, undoubtedly, problems in understanding exactly how the numbers fall out. But they, are in our view, peripheral to the question whether the application forms themselves need to be discovered. We have reached the conclusion that it is not necessary for the forms to be discovered, indeed, Mr Isonor submitted to us that it would be sufficient if they were brought to the hearing of the Industrial Tribunal and that he did not seek to have copies of them in advance of the hearing. We would mention in passing that if we were minded to order discovery of them it would be on the basis, notwithstanding that one page of notes or lists of names has been discovered in full with the candidates names and addresses, of ordering a qualified discovery with the covering up or exclusion of the names of the candidates. However, that is by the way because we are not minded to grant discovery in this case, because it seems to us, not necessary to dispose of the issue in the application, which is whether(a) the system was a genuine system at all and(b) whether it was manipulated.It is plain enough that the Department of Social Security will have to call evidence to show exactly how the system was, in fact, conducted. But in common with the Chairman of the Industrial Tribunal we are not persuaded that it is necessary for there to be full discovery of all the application forms, whether with or without, the names of the candidates. The numerical problems, if and in so far as they are relevant, will be have to be dealt with by the witnesses but we are unpersuaded that it is necessary to have all the application forms in order to solve the problems that arise in that connection.I turn then to the question of the witness order. Sir John Donaldson when sitting in the National Industrial Relations Court in 1974 in Dada v. Metal Box Company Ltd summarised the matters of which Tribunals should be satisfied before they issue witness orders and the operative sentence in his decision [1974] ICR 559 at 564 is this:
"What we are saying is that tribunals should be satisfied that the witness can give relevant evidence and that it is necessary to issue a witness order. But if they are satisfied on both those matters they ought to issue such an order."
We have therefore to decide whether the witness in question can given relevant evidence and whether it is necessary to issue a witness order. The witness in question is the local Manager of the Department of Social Security and the field over which his evidence is claimed to be potentially relevant is the history of benefits and the withdrawal of benefits that Mr Isonor claims to have been the victim of. There does not seem to be much doubt but that he ceased to get benefits which he previously had enjoyed but there is a dispute between the parties whether or not that was genuinely due to a change of the law, as the Department would say, or as a result of some improper process, as Mr Isonor would say.Now the difference between the two hearings that the Chairman of the Industrial Tribunal conducted that is significant for present purposes is that on the second hearing Mr Isonor applied, successfully, to be allowed to add a complaint of victimisation contrary to Section 2 of the Race Relations Act 1976 and if one bears that in mind and one then turns to look at what was said on this score of the witness order in the first of the two hearings, the submission that Mr Isonor made to us becomes more comprehensible. On that first occasion the Chairman said this:
"6. As I understand Mr Isonor, whilst he accepts or perhaps more accurately cannot dispute that that is the case [that is to say that the local Manager took no part in the process of selecting for the post in question] he wishes the local manager to be called in connection with his past claims for benefits which he feels have been dealt with in a discriminatory way. For precisely the same reason that I have refused Mr Isonor's application for discovery of his personal DSS file, I am not prepared to grant a witness order to compel the attendance of the local manager at this tribunal. How Mr Isonor's benefits may or may not have been dealt with in past years can, it seems to me, have no bearing on this case in the absence of a complaint that he has been discriminated against by way of victimisation under Section 2. But he makes no such complaint. Accordingly the application for a witness order against the local manager is also dismissed."
Then one comes to the second application when, as I have already said, there was an application made successfully by Mr Isonor to add a complaint of victimisation contrary to Section 2 of the Act and in that context the Chairman is recorded as having said this:
"10. Finally, for the reason which I gave in my earlier decision I am not prepared to order the attendance of the `local manager' to give evidence at the hearing. The addition of the complaint of victimisation does not make his attendance necessary."
Now, the reason that he gave in the earlier decision, which I have already read, of course was largely, if not exclusively, directed at the absence of a claim of victimisation. That moved Mr Blake on behalf of the Department to accept that that overt reason given by the Chairman, was one that he could not sustain, and it seems to us that he was quite right in that. The question therefore entirely narrows itself down to whether or not the last sentence in the Industrial Tribunal Chairman's decision "The addition of the complaint of victimisation does not make his attendance necessary." is in fact justified. There is also the question of whether the evidence would be relevant and, in our view, the application before us fails on both those scores. On relevance, we think it fails, because discrimination under Section 2 of the Race Relations Act is concerned with those cases where there has previously been some form of activity under the Race Relations Act itself, either in paragraph 2(1)(a) the bringing of proceedings under the Act, or in paragraph (b) the giving of evidence or information in connection with proceedings under the Act and (c) and (d) are similarly tied to matters that are done under or by reference to, or in contravention of, the Race Relations Act . What has happened in this case, as we understand it, is that there is a history of Mr Isonor having been refused the continuation of benefits under the Social Security System, which of course has a separate appeal structure, and which Mr Isonor failed to operate because for one reason or another, into which we need not go, he was out of time for appeals under that structure. But those matters were not matters that arose under the Race Relations Act , they were matters that arose under the Social Security legislation and Mr Isonor, while pointing out that he had produced or instituted, two separate sets of proceedings in respect of three disputes between himself and the Department of Social Security, accepted before us that those were not concerned directly with the benefit withdrawal or cessation.In those circumstances it seems to us that there is no direct relevance under Section 2 in relation to what happened in respect of the benefit cessation or withdrawal. But that does not entirely conclude the matter by itself because there is also the question of whether there is any necessity for this evidence to be given and on that score too it seems to us that when one has regard to the basic situation before the Industrial Tribunal there is really no scope for Mr Isonor sensibly relying on evidence that his witness, and therefore not subject to cross-examination by him, the local Manager might give, in relation to the giving or withholding, of benefits to Mr Isonor in the past. Those matters seem to us not to impinge directly or even remotely on the issues that appear, on their face, to arise under the victimisation claim. I qualify what I say in that way, "matters that appear to arise", because although leave was given to make an amendment and Mr Isonor tells us, and indeed it appears that there was, a letter asking for leave, which he tells us and we accept, contained a statement of what the amendment was supposed to be, that letter is not before us, and so far as we are aware the Originating Application has not formally be amended and as it now stands does not in fact raise a case of victimisation, but, leave has been given to raise that case and therefore we treat it as being included in some form or other. But trying as best we can to give effect to what we understand the amendment is likely to consist of, a task of some slight difficulty, we nevertheless, have been unable to see any way in which the evidence of the local Manager to be called by Mr Isonor could be relevant to any issue that foreseeably arises under this head. We were referred to the well known authority for the proposition that discriminatory conduct is, in principle, capable of being relevant in allegations of discriminatory conduct, at a later stage, even though the earlier discriminatory conduct is too far back in time to form the subject matter of a complaint under the Race Relations Act which of course has a very short time limit of 3 months built into it. Eke v. Commission of Customs & Excise [1981] IRLR 334. We do not lose sight of that authority. It does not, in our view, impinge either on the question of relevance or on the question of necessity for the calling of this particular witness.For those reasons we do not allow this appeal which will be dismissed.