MRS J S LAWSON v ALLIED SCHOOLS [1999] UKEAT 202_99_2805

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 202_99_2805Case No Appeal No. EAT/202/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS J S LAWSONAPPELLANTALLIED SCHOOLSRESPONDENT
Before
His Honour Judge Peter Clark Mrs T A Marsland Mr T C ThomasDate 28 May 1999
[1]APPEARANCES For the Appellant MR D SEROTA QC (ELAAS) JUDGE PETER CLARK : This case now has something of a history. By an Originating Application presented to the Central Office of Employment Tribunals on 18 th April 1997, Mrs Lawson brought a complaint of unlawful sex discrimination against the respondent in respect of her non-selection for the post of head of Riddlesworth Hall School. She was short-listed, but a man was appointed to the post. The complaint was heard by an Employment Tribunal sitting at Norwich on 14 th -15 th July 1997. By a decision with extended reasons promulgated on 15 th August 1997 ["the original decision"] the complaint was dismissed. Mrs Lawson appealed against the original decision and also applied for a review. The appeal against the original decision was dismissed by a division of this tribunal on which I sat on 23 rd January 1998 (EAT/1185/98; "the first appeal"). Applications for a review of that decision and for leave to appeal to the Court of Appeal were dismissed on 16 th March 1998. Meanwhile, the application for a review of the original decision was dismissed by the tribunal Chairman. Against that decision Mrs Lawson also appealed to this tribunal (EAT/263/98); "the second appeal"). That appeal came before a division presided over by His Honour Judge Butter QC on 18 th March 1998. The appeal was dismissed. The latest development is that by letter dated 17 th December 1998 Mrs Lawson made further application to the Employment Tribunal for a review of the original decision on new grounds, coupled with an application for an extension of time for applying for a review. The basis of this further application was that the appellant's own legal representative (she was represented by solicitors, who instructed Counsel to appear on her behalf at the original hearing) had wrongly concealed information from her prior to the original hearing. The application is directed to a set of minutes of a meeting of the School Board of Governors, prior to interviews for the short-listed candidates including the appellant held on 14 th February 1997. An order was made for the discovery of those minutes by the respondent. The complaint is that the copy provided to the appellant had large sections deleted. She also asked that both her own and the respondent's solicitors be prosecuted for failing to comply with the discovery order under s. 7(4) of what is now the Employment Tribunals Act 1996 . That application was summarily dismissed by the original Chairman, Mr D R Crone by a second review decision promulgated on 23 rd December 1998. He thought that the appellant's remedy, if any, lay against her own legal representatives. It is against that second review decision that this third appeal (EAT/202/99) is brought. This is a preliminary hearing held to determine whether the appeal raises any arguable point of law. Solicitors for the respondent to the appeal have written to the Employment Appeal Tribunal on 24 th February 1999, enclosing a copy of a letter dated 7 th July 1997 to solicitors, then acting for the appellant, Trethowan Woodford, enclosing the expurgated minutes of the relevant Governors meeting, which was held on 11 th February 1997. The letter of 7 th July 1997 reads:
"Dear Sirs, MRS J.S. LAWSON –v- RIDDLESWORTH HALL SCHOOL Further to the Order for Discovery and Inspection of Documents issued by the Industrial Tribunal, the following is a list of the documents stated that are in the Respondent's possession: 1. Psychometric Reports prepared by Lifespan Healthcare/Christine Rollin relating to Mr Dean, Mrs Lawson and the third interviewee. [ Mr Dean was the successful candidate. ] 2. Mr Dean's application for the post of Head of Riddlesworth Hall School (incorporating his C.V.). 3. Minutes of the meeting held by the Board of Governors on 11 th February 1997. We will send you copies of the relevant documentation by 10 th July, as specified by the Order. As proposed by yourself, we will blank out the name of the third interviewee. One section only of the Minutes of the meeting of the Board of Governors is relevant to the question of the appointment to the Headship. We will therefore blank out the remainder of the Minutes."
Confidentiality[2]It frequently happens, particularly in discrimination cases, that discovery is sought of confidential documents relating not only to the applicant, but also to other persons and matters. The principles to be applied on a contested discovery application were set out in the House of Lords judgment in Science Research Council v Nassé [1979] ICR 921 . The practice is that in order to determine whether discovery is necessary, notwithstanding confidentiality, which is not itself an absolute bar to discovery, the tribunal may inspect the documents for itself, without giving sight to the applicant for discovery, and consider whether by adopting special measures such as covering up parts of the document or concealing the names of other persons, proper and necessary discovery can take place.[3]It is clear that in this case the solicitors for the parties agreed that the name of the third candidate short-listed for the post who, like the appellant, was unsuccessful, should be blanked out, and further, that items in the minutes of the Governors' meeting held on 11 th February which were not relevant to the selection of the new head were blanked out without demur by the appellant's solicitors. It is also clear to us today that the appellant was aware, prior to the hearing on 14 th July 1997, that an expurgated version of the minutes had been provided, however, no application was made at the substantive hearing for inspection of the whole of the minutes. The Appeal[4]Mr Daniel Serota QC has appeared on behalf of Mrs Lawson under the ELAAS pro bono scheme. An unfortunate event has occurred. It is the usual practice of this tribunal to send to the ELAAS representative for the day a file of papers relating to the case in which he or she may be asked to act by an appellant in person. Our enquiries reveal that by mistake a copy of the unexpurgated minutes of the Governors meeting, which were sent on a confidential basis by the solicitors for the respondents under cover of their letter of 24 th February 1999, were included in the set of papers sent to Mr Serota. This morning he discussed the matter with Major Lawson, the appellant's husband, who has had conduct of her case since the original hearing, and through absolutely no fault of Mr Serota, he began to discuss the contents of the unexpurgated minutes with Major Lawson and then realised that this document was confidential and had not been intended, without order of this tribunal, for disclosure to the appellant. In these circumstances, Mr Serota was in something of a difficulty in addressing us and we invited Major Lawson to make any representations as he saw fit.[5]Major Lawson has applied for formal disclosure of the full minutes, of which he had a brief sight when the discussing the matter with Mr Serota.[6]We decline that application.[7]It seems to us that we should put ourselves in the position of an Employment Tribunal for this purpose as if we were considering an application for discovery of the whole document and look at the matter de bene esse ourselves.[8]Major Lawson submits that the contents of the unexpurgated document are relevant to the question of credibility before the Employment Tribunal and, therefore, bear on the tribunal's original decision.[9]We think there are a number of difficulties with that submission, leaving aside the fact that the second review application, the decision in respect of which is currently the subject of this appeal, was out of time.[10]First, the appellant is fixed with the conduct of her case by her then advisers. No objection to the expurgated minutes being disclosed in compliance with the tribunal's order was taken at or before the original hearing. In particular, no application was made for discovery of the whole document. In our judgment, there is no basis for re-opening the question now through a review application.[11]Secondly, having considered the unexpurgated minutes, we are quite satisfied that had such an application been made, it would have failed. It seems to us quite clear that the other matters discussed at the Governors meeting on 11 th February 1997 had no bearing on the issues arising in the appellant's complaint of unlawful discrimination.[12]In these circumstances, we are satisfied that this appeal raises no arguable point of law and consequently it must be dismissed.