MR D K DASS v LONDON GUILDHALL UNIVERSITY [1999] UKEAT 664_98_0105
[1]) Messrs Fairbairn Morris St Martin's House Priory Court Pilgrim Street London EC4V 6DR MR JUSTICE MORISON (PRESIDENT): The purpose of this Directions Hearing is to consider whether I should make any direction for the disclosure or furnishing of documents. The documents concerned are numbered 1-8, contained in a letter of 14 th April 1999 from Messrs Ray & Co, Solicitors, to the Registrar. I can deal with the items relatively simply. In relation to item 1,2 & 6, it may be that those documents either do not exist now or never existed and the Respondents have kindly indicated that they would be willing to write to the Appellant's solicitors in the near future stating their position in relation to those three particular categories of documents.[2]In relation to item 8, that documentation would be in relation to an event which is of no concern to the Employment Appeal Tribunal. If the telephone records showed that the telephone conversation had taken place on 2 nd October, then there may have been a time problem. If it was on 3 rd October, there would not have been. As a result of the Tribunal deciding to exercise its discretion in any event, it became unnecessary, as it seems to me, for the Employment Appeal Tribunal to examine whether it was the 2 nd or 3 rd October 1995 that the phone call took place.[3]As to item 7, that is a copy of the reference in relation to the Appellant, that reference has been produced to me and I can say that it is a good reference. It contains no criticism whatsoever of the Applicant. Indeed, it could be regarded as a high commendation for the way he carried out his duties.[4]In relation to items 3, 4 & 5, the position, as it seems to me, is this. The evidence given on behalf of the Respondent University was to the effect that however good the Appellant was on paper, his performance on the ground was less than satisfactory.[5]As I understand it, that evidence was not backed up by the Respondents producing any documentary material to justify that Judgment. Such material would have included, probably, evidence as to the success rate of those students for whom the Appellant was responsible, both in terms of whether they moved on to the Modular Degree Course and having regard to an assessments that had been made of their performance during the course of their time at the University. There was outside input into those assessments. So the position is that, as I understand it, the Respondents' alleged reason why this Applicant was not the preferred choice in the selection process, namely he was less satisfactory from a practical point of view than Mr Ford, was unsubstantiated by any objective evidence. That comment can therefore be made on the Hearing of the Appeal. It seems to me not appropriate for the Court to try and order these documents to be produced. I think that the points made by Mr Carr, very ably, on behalf of the University are right. I do not think that the Appeal advanced contained an appeal against the refusal by the Tribunal to order discovery of these documents. The Applicant says he asked for them in the course of the Hearing, but there is apparently no appeal in relation to any order or refusal that was made.[6]Secondly, any order that had been made is not detailed in the Tribunal's decision and there is no evidence of the order.[7]Thirdly, in any event, if the order was made in the course of the Hearing, it is likely that any appeal against it was lodged with us out of time.[8]Those are the technical reasons why it seems to me not appropriate to order the documents, but in addition, as I say, on the merits, it seems to me that this Appeal can be perfectly well argued without the need to see those documents because they can make the point that the University was relying on unsubstantiated opinions which could have been approved one way or another by readily available objective material.