MRS L ELSEY v (1) MR J BAILEY (2) H L FOODS LTD [2000] UKEAT 1183_00_0111

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1183_00_0111Case No Appeal No. EAT/1183/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS L ELSEYAPPELLANT(1) MR J BAILEY (2) H L FOODS LTDRESPONDENT
Before
His Honour Judge J R ReidDate 1 November 2000
[1]APPEARANCES For the Appellant MR G SOUTHARD (Representative) For the First Respondent For the Second Respondent THE FIRST RESPONDENT NEITHER PRESENT NOR REPRESENTED MR G BRABBINS (of Counsel) Messrs Steele & Co Solicitors 2 The Norwich Business Park Whiting Road Norwich NR4 6DJ JUDGE REID QC : This is an interlocutory appeal from a decision of the Employment Tribunal sitting at Norwich on 18th August 2000, where the Chairman, Mr Crome (sitting alone), made a number of directions. In particular, he refused witness orders which were requested by the applicant, Mrs Elsey, in a letter dated 17th July 2000 and he gave only some of the discovery which she was asking for. So far as that is concerned, what had happened was that on 26th July 2000 an order for discovery had been made in the absence of any response from the respondent, HL Foods, to a letter from the tribunal asking for their observations on a request for discovery by Mrs Elsey. That order was made in the absence of HL Foods and any comment from them, because owing to an oversight a letter objecting for the discovery had not been sent to the tribunal. The directions went on to deal with certain matters relating to exchange of documents and exchange of evidence and the order ended with this slightly cryptic sentence:
"It seems to me that the interests of justice require this case should be postponed, but Mr Bailey's views are invited before making any Order. If postponed, the case will be prelisted for October with a time estimate of one day."
We are sitting here today on 1st November 2000, so it is self-evident the case has not as yet come on for hearing. The basis of the claim by Mrs Elsey is that she was unfairly dismissed in circumstances where a substantial number of people were made redundant at the North Walsham factory of the respondents where she was employed.[2]The way in which the claim was originally put on Mrs Elsey's behalf is slightly cryptic. It is contained in a lengthy letter annexed to the IT1 from a Ms Shepperson, a solicitor, though the letter was in fact drafted by an unadmitted associate of hers Mr Graeme Gee, who describes himself as a paralegal. The suggestion is that the dismissal was contrary to section 139(1)(b)(i) and (ii) of the Employment Rights Act 1996 , and there is a suggestion that there was a further breach of section 98(2)(c) of the same Act.[3]The hearing of this complaint was to be conjoined with a similar claim by a Mr Bailey, who was also employed by HL Foods. In his case his assertion is that he was unfairly dismissed on the basis that he was unfairly selected for redundancy.[4]Mrs Elsey wishes to make a substantial number of complaints against HL Foods and the way in which their business was conducted, the manner in which the business was changed, the manner in which redundancies occurred and she wishes to say that the habit of HL Foods had been to make people redundant when they were not protected by statute and then replace them and then repeat the process.[5]None of that appears to be relevant to the claim that she is in fact making. The position, as was accepted on her behalf, was that the particular factory was to lose the baked bean production which had been going on there so that it became a factory dealing only in meat products. Mrs Elsey had at the time when the redundancies were announced been employed in the labelling department which was subject to a number of redundancies, but we are told that she was to be transferred permanently to the meat department where there would not be redundancies, but this transfer was cancelled and that she was then made redundant from her post in the labelling department. The heart of her complaint, it seems to us, really goes to the fact that her permanent transfer, as it is characterised, to the meat department was cancelled with the result that she then fell back into the pool of those who were made redundant. It has been, for practical purposes, accepted on her behalf before us today, that once she had fallen back into the pool from which redundancies were to be taken by her being left in the labelling department, there was no basis for attacking the selection of her as a potential candidate for redundancy given the other people in the pool from whom the redundancies were to be drawn. The narrow point of the case, although it is not how she would wish to put it, in reality appears to revolve around her transfer to the meat department and the cancellation of that transfer which followed upon it. That, it seems to us, is really a very narrow point. The particular part of the meat department to which she was to be transferred was the pouch room.[6]The complaints which she makes about the order were that she was not allowed to have witness summonses against a number of people, six employees of a HL Foods, the proprietress of an employment agency who provided agency workers for the plant, and "the TGWU". So far as the first of those sets of people are concerned, three of the six are to be called by the respondent in any event and in those circumstances it is rightly accepted that she should not seek witness orders against those three. The other three, it is now accepted on her behalf, are not persons that it is necessary or indeed desirable for her to call, given the three who are giving evidence and given that it would, to put it at its lowest, be problematic as to whether the other three would assist her case.[7]In this regard the respondent's skeleton argument suggests that at the directions hearing the Chairman explained to Mrs Elsey that tactical difficulties she faced in calling witnesses who might be unsupportive of her case and that in the light of that explanation she abandoned attempts to secure witness orders against those six persons.[8]Whether that be right or wrong, the position now is that three of the six are to give evidence anyway and witness orders are not sought against the other three.[9]So far as the North Norfolk Employment Agency in the person of Ms Gooch is concerned, the appellant wrote to her asking if Ms Gooch could be a witness. Ms Gooch replied to the effect that she could not because of pressure of work. But nothing in either the letter to Ms Gooch or in what has been explained to us indicates any basis upon which it would be appropriate for Ms Gooch to be called as a witness, because it does not seem to us that she could usefully say anything about the matters which are in truth in issue. We entirely appreciate that if Mrs Elsey was to be allowed to conduct a wide-ranging public enquiry to castigate the respondent for the way in which it had conducted its business it would be of interest to have Ms Gooch telling whatever tribunal it was about the way in which HL Foods looked to her for agency workers, but that does not, it seems to us, assist in the issues which are to be decided on Mrs Elsey's claim.[10]The remaining witness summons was sought against the TGWU and in this regard Mrs Elsey wrote to the District Secretary on 18th July 2000 asking for information and whether the TGWU could be a witness on her behalf. This was following a suggestion that if a witness summons were required then as a prerequisite she should have written and asked whether the prospective witness was willing to give evidence.[11]The first point about this claim for a witness summons against the TGWU is a purely practical one, that one cannot make a witness order against a union. The witness order sought should be against an officer of the union, presumably the District Secretary. We would not be impressed by a purely technical argument that the witness summons should be refused simply because the appropriate officer was not named in the application and we would have thought that that was something that could be corrected by ensuring that the witness summons was issued addressed to the appropriate officer. But the substantive point is that the terms of the letter of 18th July 2000 make it clear that the information which was being sought from the District Secretary of the TGWU did not relate to the events surrounding Mrs Elsey having her employment determined, but related to earlier periods and to the asserted contention of Mrs Elsey that there was a habit of employing people and then dismissing them at a point when they had not yet acquired any statutory rights. Given the nature of the enquiries being made in the letter of 18th July, it is hardly surprising that no witness order was made and that no witness order would have been made even if the letter had been correctly addressed to the District Secretary.[12]It seems to us that in none of these respects was there any error by the tribunal.[13]Similarly, so far as the request for discovery is concerned, the items which were refused were items relating to a variety of matters going back into the fairly distant past. They were as follows:
"1. Copy of the Respondent's re-organisation plans from the closure of Kilwinning in 1997, which resulted in the Applicant's employment at the North Walsham factory, to December 1999; 2. Copy of the details of the numbers of the new labour force employed at the North Walsham factory, from the closure of Kilwinning to date, permanent, temporary and agency; 3. Copy of details of any grants that were made available to the Respondent, from the closure of Kilwinning to 31 December 1999 (ie. money for building work, money for new work force, terms and conditions etc.) and the name of the person who granted them, if any; 4. Copy of details of the number of personnel at the North Walsham factory, that were made redundant before or after they were due for redundancy entitlement, from the closure of Kilwinning to 31 December 1999."
Those matters essentially go to the asserted practice of the respondent of operating of what might be described as a policy of serial redundancy, making individuals redundant at a time when they had not achieved any protection under the law. None of them deal with the central issue as it really is, as opposed to what Mrs Elsey perceives it, in her claim.[14]Again, in our judgment, it was entirely appropriate for the order for discovery to be refused. We were given pause at one stage by the fact that we have seen one and only one of the three witness statements exchanged on behalf of the respondent, from a Mr Carlton, which includes a considerable amount of ancient history. The explanation we were told was that this was put in because of the way that Mrs Elsey had been harping on about matters in the past and not because they were believed to be relevant. It did seem to us that it was a little difficult for the respondent to say on the one hand that the material in the witness statement was relevant, but on the other hand that there should be no discovery of documents backing up those statements.[15]On consideration we take the view that merely because a witness statement contains a good deal material which is in fact irrelevant and should not have been in there in the first place, that is not a reason for granting discovery so that an even greater expense is incurred in looking at, considering and no doubt examining witnesses about immaterial matters. It follows that we take the view that the Chairman was correct in saying that the tribunal should not order discovery in relation to those matters.[16]There then followed a complaint as to the exchange of documents because Mrs Elsey took the view that she could not exchange the documents and witness statements that she wished to rely on because she had not got the relevant witnesses.[17]The reality of the matter is that the main witness statement that she will wish to rely on is her own. It may be that there will be witness statements from others who worked with her. We understood from the course of submissions that there might be at any rate one companion of hers from her days employed by HL Foods who might be called to give evidence on her behalf, and we can see no reason why her own witness statement should not be prepared and given to the other side. So far as documentation is concerned, the documentation emanating from her will no doubt be such communications as were sent to her by the respondent and possibly by the union, though she was not a union member, in the course of her employment which are relevant to the purported redundancy or unfair dismissal. In particular, two documents we were told existed, one being a notification letter telling her of her transfer back to the meat department on a permanent basis and the other being some sort of docket to go with it. Those, as I understand it, are in her possession and there can be no difficulty about exchanging those.[18]The remaining matter is the question of the last paragraph in the order. Mr Bailey, it is now thought, may be abroad. He certainly took no part in the last hearing. It seems unlikely that he will take any further part in the proceedings from what we can judge. In those circumstances, although these matters have been conjoined, it seems to us it would be desirable that the matters be brought on for hearing on the fairly limited basis which appears to us to be true difference between the parties, as promptly as possible and it will then be for the Employment Tribunal to determine whether or not Mr Bailey's claim should be severed again or whether it should simply be dismissed for his non-attendance if such be the case. If of course he turns up, all will be well and good and the hearing in relation to both matters can proceed.[19]A further point was made on Mrs Elsey's behalf before us, to the effect that the respondent HL Foods Ltd had not complied with the directions orders as in fact made. There appears to be a difference of view between the two parties as to whether or not compliance has taken place. If Mrs Elsey is of the view that there has not been adequate discovery as ordered by the directions order, then it is open to her to apply to the Employment Tribunal for the appropriate relief, supporting her application no doubt with whatever evidence there is that there are further documents falling within the categories listed in the directions order, but no yet disclosed. For example, I understand there are only notes of one meeting relating to negotiations between the employer and union about redundancy and it is suggested that it is surprising that there are not more notes even if they are of an informal nature. But that is not a matter for Appeal Tribunal. If the order has been made and there is non-compliance then it is for Mrs Elsey to raise that matter with the Employment Tribunal.[20]We should I think conclude this decision by indicating our hope that this matter can be settled. We understand that ACAS has given certain information to Mrs Elsey as to the likely level of her recovery if she is successful in the claim that she had brought. We understand also that the respondents have made what they regard as being a generous offer in order to dispose of the matter. We have also heard a substantial figure that was put forward as being the figure at which Mrs Elsey would settle, though it was accepted that that figure was not put forward in all seriousness. We appreciate that the level of recompense that Mrs Elsey might recover if she were to be successful might well be very substantially less than what she feels as a matter of justice she ought to have, but she is clearly a lady who is not in a good financial situation. She has not got money to throw around. It would be very unfortunate if she were to continue this matter because she regards it as some sought of personal crusade in circumstances where even if she won she would be likely to recover less than appears to be on offer at the moment. She should of course bear in mind that at this stage her claim has a certain nuisance value because the respondents are necessarily incurring very substantial lawyers' fees in fighting the claim; but the longer this goes on, the more of those fees will have been incurred, the less the nuisance value of the claim will be and the less likelihood there will be that she will be able to achieve any sort of settlement. She should therefore think extremely carefully before she insists on fighting to the bitter end on a cause, however just she may feel it to be, which is one which is not going to reap for her any material benefit.[21]In those circumstances, the appeal is dismissed and the matter will go back to carry on in the Employment Tribunal.