Aitken v John Laing Services Ltd [1994] UKEAT 710_93_1304

EAT

Aitken v John Laing Services Ltd

[1994] UKEAT 710_93_1304 · 1994-04-13

HIS HONOUR JUDGE PEPPITT QC Mr Brian Aitken, the Appellant, in this appeal has complained to the London (South) Industrial Tribunal that he was unfairly selected for redundancy and so unfairly dismissed by the Respondents, John Laing Services Ltd. By letter dated 5th August 1993 Mr Aitken's agent applied to the Tribunal Chairman for an order requiring the Respondents to disclose the performance appraisals of some 20 of their employees who with the Appellant had been considered as candidates for redundancy. By the same letter the Appellant's agent also asked that the Respondents give 'a clear statement that the selection for redundancy was made by Mr Mead and Mr Jennings, and that no other persons were involved in the selection process and if others were so involved that their names be disclosed forthwith".

By letter dated 12th August 1993 the Chairman refused both requests on the ground that the information sought was not necessary for the fair resolution of the issue in the case. The Appellant now appeals from that refusal.

The Appellant was aged 60 when he was dismissed for redundancy on 11th November 1992. He had been employed by the Respondents since May 1976 as a site manager. His Performance Appraisals for the years 1989-1991 show him to have been a loyal and conscientious employee. The Respondents' answer to the claim is that the Appellant was selected for redundancy in accordance with their customary procedures as set out in a Handbook `Working Together' which formed part of the Appellant's contract of service. Those procedures provided as follows:

"In cases of redundancy selection will be determined on an individual basis by weighing the relevant factors in the particular circumstances. These factors will normally include standard of performance, individual skills, length of service, attendance, age and the needs of the business to maintain a balanced labour force"."

The selection process was carried out by Messrs Mead and Jennings after consultation between Mr Mead and the line managers of those considered for redundancy and confirmation by Mr Bertram the Respondents' Regional Managing Director. A chart was prepared by which each candidate for redundancy was rated under the following heads:

Mass Management Skills

Technical skills

Service with Company

Age

External Relations

Size of Contract

Versatility/flexibility

Attendance.

There was a maximum mark of 10 under each head. Two of the categories, age and length of service with the company, were marked in accordance with a set formula. In the case of age, employees aged 35-49 scored the maximum of 10 whereas those aged over 60 scored only 4.

Of the 20 candidates for redundancy the Appellant's mark of 56 was the lowest. He scored low marks for his age (4) and for his versatility/flexibility (4). The candidate immediately above him scored 57 marks. The Appellant was made redundant on the basis of this rating.

The Appellant's case is that he was selected for redundancy only because of his age and that he was given an unfairly low mark for versatility/flexibility so that his total marks would be lower than those of the other candidates. Mr Sigley referred us to the Appellant's performance appraisals for the years 1989-1991 and submitted that they contained no suggestion that he was inflexible or lacked versatility. He sought disclosure of the Performance Assessments of the other 19 candidates for redundancy on the ground that they might contain information which undermined the higher marks for flexibility/versatility which all but one obtained. Disclosure would also enable the Appellant to identity the persons reporting on the various candidates and to compare the comments contained in the Performance Assessments with the marks which each candidate obtained under the various heads. Disclosure might also provide evidence, said Mr Sigley, of bias by the Respondents against the Appellant. Finally he submitted that disclosure was necessary to do justice between the parties and the Chairman in refusing to order it was perverse.

Mr Jennings, the Respondents' personnel manager, told us that the ratings of the candidates for redundancy were not based on the performance appraisals but, upon direct consultation with the candidate's line manager. Indeed, not all of the candidates were the subject of performance appraisals by the Respondents. The performance appraisals which had been prepared were confidential documents and although this confidence could not of itself be put forward as a ground for non-disclosure it should be borne in mind. The substance of the Respondents' objection to the disclosure of the performance appraisals of the other candidates was that they were not necessary for a fair determination of the issues between the parties.

Both parties accept that in determining this appeal we must be guided by the principles stated by the House of Lords in Science Research Council v. Nasse '

(1980) AC 1028

. In that case their Lordships held that confidential documents such as performance appraisals were not immune from disclosure by reason of confidentiality alone nor did relevance alone provide an automatic test for ordering discovery. The proper test was whether discovery was necessary for disposing fairly of the proceedings. It was suggested that in order to decide whether disclosure was necessary the Tribunal should inspect the documents and if it ordered disclosure to consider what steps, such as `covering-up', could be taken so as to preserve as far as possible the confidentiality which attached to them. Their Lordships however cited with approval the course suggested by Arnold J in British Railways Board v. Katarajan

[1979] ICR 326

at p.333:

"We think that before deciding whether an examination is necessary, the judge or chairman of the tribunal ... must decide whether there is any prima facie prospect of relevance of the confidential material to an issue which arises in the litigation; put another way whether it is reasonable to expect that there is any real likelihood of such relevance emerging from the examination. If there is not, we do not think that the exercise of examination is necessary or should take place".

In this case the Chairman felt able to reject the Appellant's application for disclosure without examining the documents whose disclosure was sought. He evidently took the view that the disclosure by the Respondents of the marks obtained under the various heads by all of the candidates for redundancy together with the Appellant's performance appraisals was sufficient for the fair resolution of the Appellant's complaint. In his letter to the Tribunal of 5th August 1993, Mr Sigley stated that discovery was necessary to afford the Appellant 'an opportunity to review the base information upon which the decision to select (him) for redundancy was made'. It is implicit in the Chairman's decision that he considered this information was contained in the mark tally which the Respondents had disclosed.

In our judgment, the Chairman was entitled to decide as he did. The decision involved no error of law and his exercise of discretion was not open to attack on the Wednesbury principles. Furthermore, the argument before us, if anything, reinforced the view which the Chairman took. For it then became apparent that the Appellant's substantial complaint of unfairness in his selection for redundancy was the low mark which he was awarded for flexibility/versatility. The performance appraisals of the other 19 candidates would be unlikely to assist him in challenging this mark particularly if, as we were told, the performance appraisals were not considered in the assessment of the candidate's marks. Moreover, the performance appraisals were prepared on a basis different from the selection for redundancy and in particular there was no assessment of flexibility/versatility. In these circumstances we do not consider that we should interfere with the Chairman's decision to refuse the discovery sought.

In the course of the argument before us Mr Jennings on behalf of the Respondents confirmed that the Appellant was selected for redundancy by Mr Meade and himself subject to the consultation to which we have referred. In the light of this confirmation Mr Sigley did not pursue further the second and third heads of appeal in his letter of 5th August 1993.

Accordingly this appeal must be dismissed.