Shahrokni v Camden Local Education Authority [1993] UKEAT 736_93_2510

EAT

Shahrokni v Camden Local Education Authority

[1993] UKEAT 736_93_2510 · 1993-10-25

MR JUSTICE KNOX: This is, at any rate, nominally, an appeal from a decision conveyed by the Assistant Secretary for the Regional Office of the Industrial Tribunals in a letter of the 6th August 1993, which was addressed to Mr Shahrokni, the Appellant before us, and the Applicant before the Industrial Tribunal. It reads as follows:

"Your letter of 22 July 1993 has been referred to a Chairman of the Tribunals who has refused your request for an Order for further and better particulars in the above application for the following reason:-

It is not necessary."

Not altogether surprisingly Mr Shahrokni asked for some particulars of that and that was given in the following paragraph of a letter of the 16th August 1993 from the same source:

"The Chairman to whom your letter dated 11 August 1993 has been referred asks me to say that in view of the information given by the Respondent in their reply to the Race Relations Act Section 65 quest (sic) for further particulars do not appear to be necessary."

That has, obviously, gone wrong as far as the grammar of the matter is concerned. We read that as meaning that the answers that have been given to a Race Relations Act Section 65 questionnaire, had rendered the further particulars unnecessary. In fact the parties before us, very sensibly as it seemed to us, have agreed to this Tribunal going through and adjudicating upon the quite lengthy list of requests for further and better particulars and for discovery of documents, that Mr Shahrokni addressed to the Respondents' legal adviser on the 5th April 1993 and to which the Respondents made a reasoned objection in a letter from Camden Corporate Services dated 6th July 1993. We therefore take no further time in discussing the subtleties that are involved in the fact, that an Order for further and better particulars had already been made in the month of May, and that the Respondents' application to vary it has not in terms been dealt with. We come therefore, straight away, to the request as it was made by Mr Shahrokni on the 5th April 1993. There are two points of principle that arise which it will be convenient to deal with separately first.

The first is the extent to which the facts relating to a dispute that arose in or about September 1991 are relevant to this application. This application is one brought by Mr Shahrokni against four respondents, the Camden Education Authority and three persons who have worked for it at one time or another and the application is based on a claim by Mr Shahrokni that he has been victim of unlawful discrimination contrary to the Race Relations Act 1976 . In his Originating Application he identifies the grounds upon which he regards the treatment that he received as an infringement of the Race Relations Act 1976 . It is to be found in his Originating Application in which he says:

"Furthermore, in September 1992, I was not offered any part-time contract teaching from the range of suitable and available work. I believe this treatment was due to;

1. my persistence with the above mentioned grievance, [I will come back to that later] and/or;

2. my active involvement with Kingsway College's Black and Asian Staff Support Pressure Group (BASSPG), and/or;

3. alleging racial discrimination against three of the four respondents and taking the case to the Industrial Tribunal in December 1990."

The "above mentioned grievance" refers to what is set out earlier in that Originating Application, namely, an allegation by Mr Shahrokni in September 1991, following the allocation of part-time work by Mr Keith Eames, who is the fourth Respondent to these proceedings, in which Mr Shahrokni claimed that racial discrimination had been exercised so as to deprive him of the part-time work that he otherwise would have got. That, Mr Shahrokni tells us, was a matter in respect of which he thought it right not to start proceedings before the industrial tribunal because there were other proceedings that had been settled at about the same time, or shortly before it, which would have made it difficult for him, he claims, to have brought an Originating Application for racial discrimination in respect of Mr Eames' activities. However that may be, it was not until June and July 1992 that matters started coming to the head which led to this Originating Application which was not, in fact, presented until October of this year, it is dated 29th October 1992. Mr Shahrokni's case was that he wrote in June and July 1992 saying that he wished to have his grievance against Mr Eames, about which he had started internal proceedings, prosecuted and that he waited for a reply until September 1992, because the two preceding months were holiday months, and not receiving any reply referred the matter to the Industrial Tribunal. We have, therefore, that claim against Mr Eames, which, in fact, had a counter part in that Mr Eames appears to have had a grievance against Mr Shahrokni in respect of the way in which Mr Shahrokni pursued his complaints against Mr Eames. Those seem to us to be, in practical terms, the two sides of much the same coin. The question of principle that arises as far as we are concerned is the extent to which it would be right for us to regard that grievance that Mr Shahrokni had against Mr Eames in relation to what happened in September 1991 as material which was proper subject matter for discovery and the giving of further and better particulars in these proceedings.

It seems to us that there has to be a line drawn between, on the one hand, that original dispute that led to that grievance, which clearly is dated in September 1991, and, on the other hand, the failure which Mr Shahrokni relies on, by the College to process that grievance in accordance with its own procedures, and the non-appointment of Mr Shahrokni as a part-time lecturer in September 1992 which, on any view, forms an important part of his case on this Originating Application. There is, we think, a very clear line between those two and we are not satisfied that it would be right, against the factual background that I have rehearsed, to regard what happened in September 1991 as being a proper subject matter of detailed investigation by the Industrial Tribunal in dealing with this Originating Application. The question of who was in the right and who was in the wrong, in September 1991, regarding Mr Shahrokni's complaint, is not in our view matter which is the proper subject matter of full investigation by this Industrial Tribunal. The existence of that dispute, on the other hand, undoubtedly is a part of the relevant background. But we would draw that distinction between the acknowledgment of the existence of that dispute on the one hand, and an identification of who was in the right and who was in the wrong, in regard to it, on the other hand. That is the first question of principle which leads us to the conclusion that we should not direct further and better particulars in relation to the full details of the dispute in September 1991 as opposed to the dispute that arises regarding events in September 1992.

The second point of principle is the question, how far, if at all, we should order particulars and corresponding discovery, in relation to the student body at Kingsway College, which is one of the Colleges that is, or was, run by the Camden Education Authority. Mr Shahrokni's principal complaint is concerned with his non-appointment as a part-time teacher in September 1992 and the processing, or the failure to process, his complaint regarding what had happened one year previously. It is not directly concerned with anything to do with the students, save in so far as the body that he has mentioned as being relevant to the reasons for his non-appointment, namely, the Black and Asian Staff Support Pressure Group, may perhaps be concerned also with students as well as lecturers. It seems to us that the purpose for which Mr Shahrokni seeks to obtain particulars in relation to the students and their ethnic make-up is far too speculative and marginal to the issues in these proceedings which are primarily concerned with the appointment and non-appointment of teachers and not the acceptance, or passing or failing, of students at the relevant educational institutions. We are, therefore, not willing to make Orders in relation to students but will limit the Orders that we make to the teaching side of these questions.

With that pre-amble I turn to the particulars that are sought and I do it by reference to the numbers that are to be found in the letter of the 5th April 1993 that Mr Shahrokni wrote to the Controller of Legal Services at Camden.

(c) , which asks:

"would you please list by name and/or reference number all those full-time lecturers in Grays Inn 2 units that have done paid over-time or substitution work since September 1991"

stating, for each one, the total over-time that he or she has done and the grade of pay involved.

First of all there is the question of the date, and for the reasons that we have given earlier, we would limit this to September 1992 and thereafter. The point of this enquiry is that Mr Shahrokni's case, in substantial part on this aspect of the case, is that the work that he had done previously in the Maths Unit had been, syphoned off, to use an expression that he used, to other units in the College concerned, for improperly racially motivated considerations of preventing Mr Shahrokni from being employed.

On behalf of the Respondents it was conceded that so far as September 1992 is concerned the documents regarding the allocation of hours and teaching should be revealed and that this was a perfectly proper subject of enquiry. It was said that if the Applicant had been able to identify a lecturer in the category concerned then the Respondents could quite easily have complied with this request and that seems to us effectively to concede that the enquiry is one which is, in principle, a relevant one. But what is being said on behalf of the Respondents, is that the Appellant is seeking to fish for a case and that it is only if he can name names that he should be allowed to ask for these particulars. That seems to us to be a misapprehension because if the point is, in principle, a good one without names then the inability of the plaintiff to name names seems to us no barrier to his being given the information in question. On the other hand, we are very conscious of the fact that Mr Shahrokni, and his expertise and activities in the past, are not co-extensive with the whole of the activities in the Kingsway College, run by the Camden Education Authority, and that it would be oppressive for us to make such a wide Order as is sought by Mr Shahrokni and what we propose to do, therefore, is to make an Order in the terms asked for but limiting it, first of all to September 1992, rather than September 1991, and secondly, to limit it to the subjects which Mr Shahrokni had been teaching in the preceding academic year from September 1991-1992. There was debate before us whether it would be right to limit the enquiry to what Mr Shahrokni had been teaching rather to what he was capable of teaching, because Mr Shahrokni submitted to us, that in particular, so far as science is concerned, his expertise was perfectly capable of embracing subjects that he had not, in fact, in the past taught, but which he could teach perfectly well and which it would have been reasonable for him to be engaged to teach in the future. It seems to us that a fair balance will be struck by limiting the field of enquiry to what he had been teaching, because it seems to us in principle extremely unlikely that, in relation to subjects which he had not in fact been teaching, the same points could be made by Mr Shahrokni as could be made in relation to the subjects that he had been teaching. It is one thing to say that he should have been engaged in teaching subjects that his past employers had employed him to teach, it is quite another thing to say that it should have extended beyond that to subjects that were, in fact, within his expertise but which he had never, in fact, taught. Therefore, we make that Order with those limitations to it.

The next one is A1(d) and that asks for, in relation to each unit at Grays Inn:

"(i) the total Base Budget hours for 1991-92;

(ii) the total Funded hours for 1991-92;

(iii) the total servicing hours for 1991-92;

(iv) the grand total of hours for 1991-92"

and then the same information for 1992-93. So for as 92-93 is concerned that is conceded, subject to the limitation that is submitted should be made to the three units concerned in which Mr Shahrokni had had experience. That is to say, the Maths Unit; the PBS Unit and the Computer Unit. There was debate before us whether or not the Science Unit should also be included because part of Mr Shahrokni's case is that some of what had previously been dealt with in the Maths Unit, was, to use his expression, syphoned off, to the Science Unit. On balance we are prepared to grant this Order for further and better particulars, limiting it to 1992-93 and to the three units in question, the Maths, PBS and Computer Units.

The next request is in relation to a list by name, and/or reference number, of all the part-time lecturers in Grays Inn Units since September 1991, stating for each one the total contract work done and the total substitution work done and the grade of pay. In this case we impose a similar limitation in relation to the Units involved, that is to say to Maths, PBS and Computer, and we also limit it, as asked on behalf of the Respondents, to the term that follows on September 1992. It seems to us clear that the examination of the principal claim that Mr Shahrokni advances, namely, the failure to employ him in that first term in the academic year, is going to turn on what happened between September and Christmas 1992. What happened after Christmas 1992, in the first term of 1993, is really going to be so marginal as not to warrant Orders for further and better particulars. Subject therefore to that limitation in time to one term after September 1992, the first term of the academic year, and to those three Units, we make that Order.

The next item was A1(f) and that asked for:

". . the details of all the full-time and fractional appointments (teaching or otherwise) at Kingsway (Grays Inn, Vernon Square and Clerkenwell centres) since September 1991"

to include a variety of details such as job title; name; race/gender and then details about how they were appointed, the number of short-listed candidates and whether there was advertising and what sort of advertising and why the position was vacant. We are not minded to grant this, which seems to us in going so far as to include all the part-time and fractional appointments, teaching or otherwise at this College, and including two centres, which are not the centre with which Mr Shahrokni was principally concerned, to go far beyond the bounds of what is necessary to dispose of these proceedings, and we do not allow that request for particulars.

A1(g) is closely allied with (e) that we have already dealt with. That is to say, the work which was offered to part-time hourly staff in Grays Inn 2 Units from the end of the Summer Term 1992 and the Order that we have made in relation to (e) will go in relation to (g) as well.

A1(h) is not objected to and we make that Order.

A1(i) is a request in relation to an answer that was given to the questionnaire under the Race Relations Act . The answer that was given contained a list of criteria for inclusion in course matter and is obviously highly material to this case.

(i) is:

". . .

(i) all courses/classes cut;

(ii) all courses/classes unchanged;

(iii) all courses/classes added"

in relation to the matters dealt with in that reply to the questionnaire (the document in question is at page 70 in our bundle). This seems to us to be relevant but should be limited to the area that we have already indicated as the proper subject of these particulars, namely, September 1992, rather than September 1991 and the three Units involved, the Maths, the Practical Business Skills Unit and the Computer Unit.

Paragraph (j) seems to us to be ill-phrased. What it asks for is this:

"please list all the Maths Unit's work staffed by those in other units since September 1991, stating name and/or reference number of the staff, name of the subject, dates, duration etc."

It seems to us that it is a perfectly proper subject for a request for particulars to try to identify the extent to which subjects taught during the 1991-2 academic year in the Maths Unit became taught in the 1992-3 year in any other Unit. We are not of course making a finding that if and to the extent to which that happened that is determinative of racial discrimination contrary to the Act but it is a subject matter of enquiry which might lead to that conclusion and in principle, therefore, we consider that the request for particulars, if limited to that, would be justified and what we propose to Order is that there should be given a list of any subjects taught during the 1991-2 year in the Maths Unit which were taught in the 1992-3 year in any other Unit, specifying the Unit involved, and the name of any part-time teacher involved in the latter teaching. That seems to us to give the information to which Mr Shahrokni is properly entitled.

The next paragraph (k) seems to us, similarly, to enshrine a rather straightforward dispute. It turns on a provision in various documents, starting with one dated the 1st July, a letter by Mrs Betty Barker, the Centre Director for Kingsway Camden's College, to Mr Shahrokni, in the course of which under the heading " PBS Unit " there was a paragraph which said:

"If you would like to talk to Sheila Daley about the work in her Unit in general, to see if there are any areas that you could take up in the future, please contact her or let me know and I will link you up for a meeting."

Without going into the details of it there followed some toing and froing in the correspondence about the possibility of such a meeting. It does not appear that the meeting ever took place and it is left somewhat uncertain on the pleadings in this application whether the Respondents are saying that there was, in fact, a meeting arranged which Mr Shahrokni failed to attend. The request for particulars does not in fact ask that, it asks:

"Please explain why a meeting was not arranged by Mrs Betty Barker?"

which is a somewhat unfair question because it assumes the answer to the question which is sought. We propose to Order that particulars be given by way of a reply to the question - was a meeting arranged for Mr Shahrokni to meet Sheila Daley? - and is it alleged that Mr Shahrokni failed to attend such meeting? That should suffice to clear up the misunderstanding that seems to prevail about this rather small matter.

A1(l) is conceded and we make an Order in those terms. Nothing much turns on that.

A1(m), (n) and (o) all go together and these are paragraphs which are aimed at the comparison of the teaching staff before and after September 1992, although (m) starts with a request for the number of full-time established teaching staff at Grays Inn 2 Units in June 1991. That does seem to us to go much too far back in the past to be directly relevant to the issues that arise in these proceedings and we do not propose to make an Order in relation to that period of time. What was being pursued in relation to (m) and (o) in particular was the correlation between early retirement and voluntary redundancy and the reduction in the teaching staff at the Grays Inn 2 Units and it was submitted to us by Mr Shahrokni that there had not been any effective correlation by the Respondents between the reduction in staff and those two sources of reduction, namely early retirement or voluntary redundancy. We accept what Mr Brown submitted to us, namely, that early retirement and voluntary redundancy are consequences of shrinkage rather than the other way around and we do not feel that these requests are necessary, fairly to dispose of these proceedings, and we do not make that Order.

A1(p) and (q) are not in dispute and will be Ordered.

A1(r) deals with students and for the reasons that I gave earlier, we do not make an Order under that head.

So far as the fourth Respondent is concerned, there is a request which is not disputed at A2(a) which I need not deal with further because we make that Order.

A2(b) raises the question of the grievance of Mr Eames, who is the fourth Respondent, against Mr Shahrokni. For the reasons that we gave earlier in this judgement, we do not propose to Order particulars of that matter.

I turn now to the questions of discovery. First of all under letter B a) (i) and (ii) there is asked discovery on two matters that are not in dispute and should hardly be a matter of any controversy, one is the contract of employment or the statement of terms of Mr Shahrokni's employment and the other is his job description. Where the dispute arises on this head, is that he asks for:

"(iii) details of my attendance, time-keeping, work performance, warnings or disciplinary action, if any, taken against me.

(iv) any documents relevant to any complaints and grievances against me"

It is pointed out that there is no allegation that there are any shortcomings under any of those heads by Mr Shahrokni such as to warrant his not having been employed as a part-time teacher in September 1992 and that is not what this case is about. That seems to us to be right. It is no part of the Respondents' case that they were justified in not employing Mr Shahrokni because, for example, his work performance was defective and these particular requests, therefore, seem to us not to be sufficiently relevant to be necessary to dispose fairly of the action.

"(v) copies of all correspondence between myself"

and the three human Respondents. That is to be dealt with sensibly, as it seems to us, by the parties agreeing to exchange lists of correspondence that has passed between them. We understood from Mr Shahrokni that this was, at best, a safety precaution, in case there were some letters of which he was not aware. The exchange of lists should be both simple and conclusive in showing whether or not there are any differences between the two parties as to what they have written to each other.

(b), (c) and (d) are not in issue and will Ordered. (e) reads:

"With reference to document C provided in response to [the questionnaire] please provide all the documents relevant to this grievance, in particular any documents referred to in the last paragraph."

That is the grievance that Mr Eames had which was, in our view, the other side of the grievance that Mr Shahrokni had against Mr Eames, and for the reasons that we have already given, we do not propose to make that Order.

(f) Is concerned with another document that was annexed to the answer to the Section 65 questionnaire, a list of part-time staff not re-employed in September 1992 because of staffing cuts and a request is made for any documentary evidence showing that the lecturers have not been re-employed by Kingsway College due to the cuts, including documents showing they were willing and available to continue teaching. We propose to limit it to the latter part of that request because we consider that documents showing that any or all of those persons were willing and available to continue teaching would be relevant as tending to support the Respondents' case. We see no objection to ordering that and do so. On the other hand the earlier part of the request seems to us to be requiring a negative to be proved in circumstances where it would hardly be conducive to the expeditious settlement of these proceedings to make such an Order and we do not go beyond the latter part. (g) Is concerned with the names of part-time lecturers in Units since September 1991. The Units identified are Science; Mathematics; Practical Business Skills and Computer and for the reasons given earlier we propose to limit that to Mathematics; Practical Business Skills and Computer Units and to September 1992 rather than September 1991. (h) seeks, by name and or reference number, copies of the time-table of all full-time lecturers in Science; Mathematics; PBS and Computer Units since September 1991. We regard that as an oppressive enquiry which would not be needed fairly to dispose of these proceedings. We do not propose to make that Order. (i) is a request for the time-table of a Mrs Libby Lindsay, who was due to teach during the Autumn of 1991. This goes back to the genesis of the dispute that led to the grievance between Mr Shahrokni and Mr Eames, and for reasons given earlier we do not propose to make that Order. (j) is concerned with students. For the reasons given earlier regarding students we do not propose to make that Order. (k) is concerned with a copy of the guidelines for re-employing part-time lecturers. That is not objected to and we make that Order.

That deals with all the issues in the letter apart from:

"Please provide all other documents you intend to rely on at the full hearing."

which we propose to allow to be dealt with in the ordinary course of discovery.