A v B & Anor [1997] UKEAT 220_97_1802

EAT
A v B & Anor
[1997] UKEAT 220_97_1802 · 1997-02-18

JUDGE PETER CLARK :

This is an appeal by the Respondents to a complaint of unlawful sex discrimination by the Applicant which is proceeding in the Nottingham Industrial Tribunal. In essence the nature of the allegation is one of sexual harassment by the First Respondent, who is a partner in the Second Respondent firm, of the Applicant, who was then an employee of that firm. In this judgment we shall use those descriptions of the parties.At the outset of this appeal hearing, in accordance with our powers under Rule 23 of the Employment Appeal Tribunal Rules 1993, we enquired of Mr Padman whether this was an appropriate case in which to make a restricted reporting order under s.23(3) of the Rules. So far as we are aware no such order has yet been made by the Industrial Tribunal in this case under Rule 14(1) of the Industrial Tribunal Rules of Procedure, 1993, although Mr Padman has indicated that such an application will be made to the Industrial Tribunal on behalf of the Respondents.One difficulty is that although this is strictly an inter partes appeal hearing, the Applicant does not appear and is not represented before us. It is right to say that in view of the urgency of this appeal very short notice of hearing was given to both parties. In these circumstances it is at any rate arguable that the Applicant has not been given a proper opportunity to advance oral argument against the making of such an order (see Rule 23(5)). Accordingly, we shall invoke our powers under Rule 39(2) insofar as it may be necessary, to dispense with the requirements of Rule 23(5) and make the order, but grant liberty to the Applicant to apply at an oral hearing for revocation of the Restricted Reporting Order if she is so advised.Meanwhile, we specify that the names of the Applicant and both the First and Second Respondents shall not be identified for the purpose of Rule 23(4).

The Appeal

The Appeal is brought against the first and second paragraphs of an order made by an Industrial Tribunal Chairman at Nottingham and contained in the Tribunal's letter to the parties dated 6 February 1997. That letter reads, as far as is material:
"A Chairman of the Tribunals has refused your application of 4 February 1997 as follows:
1. The request for Further and Better Particulars is refused as they are not necessary for disposal of the case.2. Discovery of the applicant's medical records is refused as they are not relevant to the tribunal hearing."That application was in these terms:
"1. That the Applicant do provide Further and Better Particulars as requested under Paragraph 8(1)
2. That the Applicant do give discovery as requested under Paragraph 8(2) of her medical records kept by her psychotherapist, any hospital records and/or Records kept by her General Practitioner and in default thereof she be debarred from further proceeding with her Application."We shall deal first with the Chairman's refusal to order discovery.

Pleadings

By an originating application dated 6 November 1996 the Applicant complained of sexual harassment and sexual discrimination. She alleges that on Saturday, 19 October 1996, she went in to work at one of the Second Respondent's offices at the request of the First Respondent. Whilst they were alone together he caressed her neck, against her will, and finally, as she stood up, pulled her face towards him and kissed her. In a detailed notice of appearance those allegations are firmly denied. Credibility is therefore very much in issue.We should refer to some of the detail of the grounds of complaint attached to the originating application. We quote:
"7. I went out of the offices and did some shopping in the town. I arrived back home at around 4.35pm. I was in a total daze and cannot remember taking my shopping out of the bags. My husband, Colin, knew something was wrong and finally got the truth out of me. I was very distressed and upset. The following day, (that is, Sunday, 20 October) I told my parents what had happened.
8. On Monday, 21st October I went to see my psychotherapist at Humberstone Grange Clinic, whom I am seeing for other emotional problems relating to my childhood. I told her about my experience and this will no doubt be on her records.9. I also went to see a Doctor on the same day, who prescribed some tablets to calm me down. These tablets are called Flupenthixol and I had to pay £5.50 for that prescription."The Respondents sought further and better particulars of the allegation under paragraph 8:

" UNDER PARAGRAPH 8

Of:
'... see my psychotherapist ...'

Stating since when the Applicant had been seeing her psychotherapist

Of:
'... emotional problems relating to my childhood.'
(1) Stating with sufficient particularity the nature of each such emotional problem(2) Stating whether the Applicant would be prepared to authorize the disclosure of records kept by her psychotherapist.."The Applicant replied to that request in these terms:

" UNDER PARAGRAPH 8

SEE MY PSYCHOTHERAPIST ...Every Monday morning since Monday 9 September. SCF [the First Respondent] is fully aware of this since I had to ask permission to come in late on Mondays and make my time up by staying later.emotional ...(1) He is also aware of these as they were discussed at length on several occasions. They have no relevance to this matter.(2) I am not prepared to authorise disclosure of my records since they are personal and have no relevance. I am however, prepared to authorise my psychotherapist to compile a report of my state before and after the incident."Finally, we should refer to some of the detail given in the notice of appearance. It is said that on 21 October the Applicant's husband called at one of the Second Respondent's offices at or about 9.15 am. He informed the receptionist there that the Applicant would not be able to return to work until Wednesday because she was suffering from an upset stomach and further it is alleged that on 23 October, the Wednesday, the Applicant telephoned the same office at about 9.10 am to inform that same receptionist that she would not be able to return to work for the rest of the week as she was still suffering from her upset stomach. She promised to send in a sick note to substantiate this.

Submissions

By her answer the Applicant draws our attention to the authority of Medallion Holidays v Birch [1985] IRLR 406 for the proposition that the Employment Appeal Tribunal cannot interfere with an interlocutory order of the Industrial Tribunal unless an error of law is made out. We accept that submission.Mr Padman submits that the error here lies in the Chairman's ruling that the medical notes were not relevant to the Tribunal hearing. We have considered the guidance contained in the Employment Appeal Tribunal decision in British Railways Board v Natarajan [1979] ICR 326, 333F expressly approved by the House of Lords in Science Research Council v Nasse [1979] ICR 921 , 941D-E (Lord Edmund-Davies).The first question for us is whether there is any prima facie prospect of relevance of the confidential material (we accept, of course, that a patient's medical records are confidential). If there is, then it is for the Industrial Tribunal Chairman to examine the material himself in order to make a judgment as to whether some or all or none should be disclosed, and if part is to be disclosed, whether limits should be placed on that disclosure.In our judgment the medical notes are prima facie relevant in this way. The Applicant herself has referred, in paragraph 8 of her IT1 grounds of complaint, to her having told her psychotherapist on Monday 21 October of what had happened on the previous Saturday. Thus her notes may be relevant to show whether or not she did report the alleged incident to the psychotherapist. Similarly, it may be relevant to see whether her General Practitioner's notes of that day record her complaining of harassment by her employer, or of a stomach upset, looking at the Respondents' case.A different question is whether her medical history ought to be investigated by the Respondents' own medical expert. That is a matter on which the Industrial Tribunal Chairman will want to hear submissions, having seen the medical notes.In these circumstances we conclude that the Chairman did fall into error in holding that the notes were not relevant, and in refusing an order for discovery without more. We shall, therefore, set aside that part of the Chairman's order which relates to discovery and direct that a directions hearing be convened before a Chairman sitting alone at which he can consider the medical records of the Applicant in order to rule on the issue of discovery and inspection. The appeal is allowed to that extent.In view of the short time available before the hearing date fixed for 24 February 1997 for the substantive hearing in this case, we shall direct that that date be vacated, as both parties in any case desire, for different reasons, and leave it to the Industrial Tribunal office to notify the parties of a date for the directions hearing.Mr Padman has indicated that if he were to succeed in this appeal to the extent which he has in relation to discovery, he would abandon his appeal in relation to the Further and Better Particulars. In these circumstances we shall dismiss that part of the appeal.