Charalambous v Patel Dodhia & Co [1995] UKEAT 160_95_0103

EAT

Charalambous v Patel Dodhia & Co

[1995] UKEAT 160_95_0103 · 1995-03-01

MR JUSTICE MUMMERY (PRESIDENT): This is an interlocutory appeal by Mr Charalambous against an order made by the Industrial Tribunal held at London South on 12 January 1995. For reasons notified to the parties on 7 February 1995 the Tribunal made the following order which is appealed by Mr Charalambous.

" It is ordered under paragraph 4(1)(b) of Schedule 1 of the Industrial Tribunal (Constitution and Rules of Procedure) Regulations 1993 that the applicant does provide the respondent within fourteen days of promulgation of this order the following documents:-

i) Copies of the Applicant's tax returns for the financial years 6 April 1984 - 5 April 1994.

ii) Copy assessments issued to the Applicant by the Inland Revenue for Schedule D or E as appropriate for the financial years 6 April 1984 - 5 April 1994.

iii) Full details of the Applicant's National Insurance contributions for the financial years 6 April 1984 - 5 April 1994."

The summary reasons for the decision were that the Tribunal considered the documents relevant and necessary to dispose fairly of the proceedings. The proceedings were brought by Mr Charalambous claiming redundancy pay. The claim is in an originating application presented by him on 17 October 1994. His complaint stated in the originating application is that he had been employed by the respondents Patel Dodhia & Co from 4 January 1984 until the 8 April 1994 and that his former employers were refusing to pay him redundancy pay after several requests. As they had failed to make the payments he took the case to the Industrial Tribunal.

In the Notice of Appearance dated 2 November 1994 the respondents denied that Mr Charalambous had been dismissed for redundancy or at all. Their case was that he was a self-employed sub-contractor providing accountancy services and was responsible for the payment of his tax and national insurances.

There is clearly an issue for the Tribunal as to whether Mr Charalambous was employed or self-employed. It was for that reason that the Tribunal also made an order that there be a hearing on 6 March 1995 limited to consideration of the following preliminary issues:

1. Whether the applicant was employed within the meaning of Section 153(1) of the Employment Protection (Consolidation) Act 1978.

and

2. Whether, in the event of the Tribunal finding that there was Contract of Employment, that Contract of Employment was an illegal contract and therefore unenforceable.

Mr Charalambous appealed against the order that was made. The grounds of his appeal are set out in his letter of 16 February 1995. He says:

"I am astounded that the Interlocutory order of the Industrial Tribunal was made against me when the following points were raised at the meeting of 12th January 1995:

1. I did not deny, at the meeting that my status with the Respondent was that of a SELF EMPLOYED person. The Respondent was instructed at the outset that my employment with him should be that of self-employed person.

2 As I explained at the meeting, the information requested by the Respondent and ordered in the interlocutory order is not RELEVANT and is not going to be supplied to the Respondent. ..."

" i ... The information contained in the Tax Returns is private and confidential and is not relevant ... The Tax Returns contain information on investment income, rental income, dividend income etc. and the Respondent is not entitled to and has no right to know this information."

" ii The assessments issued to me by the Inland Revenue for the financial years 6 April 1984 - 5 April 1994 show the total income less capital allowances, personal allowances and reliefs and the total tax and class 4 NIC charged This information is again private and confidential as the total income shown in those assessments is derived from VARIOUS SOURCES which the Respondent is not entitled and has no right to know."

"iii The position regarding my National Insurance Contributions has already been discussed at the meeting. I explained following the chairman's request that I was paying class 2 and 4 National Insurance Contributions. It is hereby confirmed that the NIC contributions paid throughout the period with the Respondent were class 2 and 4. ... "

The response to the Notice of Appeal served on 24 February 1995 has been a cross-appeal by the respondents dated 28 February. In the cross-appeal the respondents resurrect the parts of the request originally made for discovery in a letter to the Industrial Tribunal dated 23 December 1994, which were not the subject of an order by the Industrial Tribunal. The documents sought on the cross-appeal are these:

i. The applicants' trading or practice accounts for the period from 1984 - April 1994;

ii. Tax computations submitted to the Inland Revenue for the period from 1984 - April 1994;

iii. Tax assessments issued to the applicant for the like period;

iv. Copies of all correspondence between the Applicants and the Inland Revenue.

At the outset of the hearing of the appeal this morning Mr Charalambous appeared to take the position that he was a self-employed person. It was pointed out to him by the tribunal that the consequence of taking that position was that he had no claim for redundancy. He reconsidered his position and said that he wished to pursue his claim as an employed person. It was explained to him that if he wished to pursue his claim as an employed person he must make disclosure of relevant documents. It was explained to him why tax returns, assessments and National Insurance Contributions are relevant to the question of determining whether he is employed or self-employed.

For the respondent Mr Cross submitted that the Appeal was not maintainable. He asked, with some justification, what are we doing here? The basis of that submission was that the Tribunal has a wide discretion under its rules of Procedure, in particular Rule 4, to decide when to order discovery of documents and to what extent. That was a discretion that could only be questioned by this Tribunal if there was an error of law in the exercise of the discretion or a perverse decision. He submitted that the disclosure ordered by the Tribunal was reasonable, because it was relevant. The disclosure of tax details of an applicant to the Industrial Tribunal is a standard procedure in cases where an issue arises as to whether there was a Contract of Employment. He submitted there were no grounds for reviewing the decision. He also accepted that the consequence of rejecting the appeal was that we would also reject his cross-appeal.

In our view, Mr Cross's submissions are sound. There are no grounds on which we can interfere with the exercise of the Tribunal's discretion to order discovery of the documents i, ii and iii in the order notified on 7 February 1995.

The appeal and the cross-appeal are dismissed. As Mr Charalambous has appeared in person we add this by way of clarification. Although, in our view, there are no grounds for faulting the order for discovery which has been made, it is open to Mr Charalambous, on production of the documents for inspection, to claim that he can cover up parts of the documents, in particular, accounts and parts of tax returns which are not relevant to the issue whether he is employed or self-employed. That is not a matter of discovery. It is a matter of the extent to which the respondents are entitled to inspect and take copies of the documents. We have explained to Mr Charalambous in the course of the hearing that he must allow inspection of the documents discovered by him, so far as they are relevant to other sources of income earned by him for work done by him for persons other than the respondents and also parts of the documents relevant to expenses and allowances he has claimed from the Inland Revenue in relation to those sources of income.

If there is any further disagreement between the parties as to what the respondents are entitled to inspect in these documents and it cannot be resolved by agreement, it will be necessary to make a further reference to the tribunal.

For those reasons we dismiss the appeal and dismiss the cross-appeal.

Following the decision to dismiss the appeal, there was an application by Mr Cross on behalf of the respondents that Mr Charalambous pays the costs of this appeal. We have power under Rule 34 of 1993 Rules to make an order for costs where it appears to the Appeal Tribunal that any proceedings were unnecessary, improper or vexatious or that there has been an unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings. We may make an order against the party at fault in relation to the whole or such part of the costs that we think fit. We may order the sum to be assessed and paid or directed to be assessed by taxing officer.

Mr Cross submitted that, on the basis of the matters already summarised in the judgment, this was an unnecessary appeal and an order for costs should be made. He submits figures for costs which total £517.68.

In our view, an order for costs is appropriate in this case. The appeal has not only failed, it never stood a hope of succeeding. It was an unnecessary appeal and it was unreasonable on the part of Mr Charalambous to pursue it.

It was particularly unreasonable when, as described already, he seemed to be taking an ambiguous position about his status in relation to these proceedings. It was his duty to clarify his position, and it remained unclear until we spelt out to him the consequences of asserting that he was self-employed.

It appeared that at various times he was saying that he was employed for the purposes of claiming redundancy, but self-employed for purposes of resisting discovery. This position is not maintainable.

We have decided to order Mr Charalambous to pay £500.00 towards the costs incurred by the respondents on this unnecessary appeal.

We will order payment of £500.00 within four months. If it is difficult or impossible you can come back to the Tribunal with evidence and ask for an extension. You will have to produce evidence as to your financial position.