LONDON BOROUGH OF BRENT v 1) MS J LEADER 2) MS J MYERS 3) MR R GREY 4) MS V MULHOLLAND 5) MS N JAMES [2000] UKEAT 636_00_1210

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 636_00_1210Case No Appeal No. EAT/636/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
LONDON BOROUGH OF BRENTAPPELLANT1) MS J LEADER 2) MS J MYERS 3) MR R GREY 4) MS V MULHOLLAND 5) MS N JAMESRESPONDENT
Before
Mr Justice LindsayDate 12 October 2000
[1]APPEARANCES For the Appellants MR O HYHAMS (of Counsel) Instructed by Ms M Thomson Legal Services Manager London Borough of Brent Chesterfield House 9 Park Lane Wembley Middx HA9 7RW For the Respondents MS J LEADER (1st Respondent) On behalf of all Respondents MR JUSTICE LINDSAY (PRESIDENT) We have before us the appeal of the London Borough of Brent in the matter Joy Leader & Four Others -v-London Borough of Brent . Mr Hyhams has appeared today for the London Borough of Brent as Appellant before us and the five individual applicants have been spoken for by the first named, Joy Leader.[2]It is necessary to say a little of the background: there are five related proceedings, (but perhaps they have been knocked together into one) in which employees of Brent are claiming unfair dismissal and unfair selection for redundancy. We will take Ms Leader's case as typical and there is no reason to think that it is not.[3]This particular appeal concerns an order made by a Chairman alone at the Employment Tribunal as to discovery of a document described as the Report of Brent Council's Special Investigation Unit on Linda Gardner dated 20 December 1999.[4]Looking at the chronology of the matter, on 16 November 1998, Ms Leader lodged a IT1 for unfair dismissal and unfair selection. She had worked at the Strathcona Day Centre for learning disabled adults. The job she had had was, she said, still in existence, although she had been dismissed, purportedly, for redundancy.[5]On 30 November 1998, an IT3 was put in by Brent and the reason given for dismissal was redundancy or business reorganisation; Brent denied that her post still existed. There have been an Amended Originating Application and an Amended Notice of Appearance. We will come to that in part later.[6]On or about 20 December 1999, the report in question, the document which is in play, was made; it was made by an employee of Brent who apparently had been commissioned to write a report by the local authority. It was, in date, fairly well after the events as to redundancy, but, of course, there was no reason why it should not have referred back to earlier events.[7]There was a Directions Hearing before one Employment Tribunal Chairman, Mr Flint. Brent on that occasion showed the report to the Chairman, Mr Flint, and there were apparently Directions given as to the issues in the case. We have not seen what emerged from that hearing, but presumably the document was not then given or seen by to the Applicants.[8]At some time - and again the date does not appear and perhaps it is unimportant - the Applicants applied for a disclosure of the report to them under Employment Tribunal rule 4(1)(a). That application was ruled upon on 20 April by another Chairman, Mrs Prevezer, sitting alone. She dealt with the application for disclosure, and she held:
"9 Having read the report and the conclusions I conclude that these reports are of importance which the Tribunal that hears the case in October should see because they throw light on the actions of Ms Gardner at the time that she was selecting these Applicants for redundancy and as to whether there was a proper redundancy situation or whether these Applicants should have been transferred under the Transfer of Undertakings Regulations"
. A little later she says:
"11 I therefore order that Brent Council Special Investigation Unit report on Linda Gardner dated 20 December should be disclosed to the Applicants' representative as it is relevant to the issues that have to be decided by the Court at the hearing and goes to the issue as to whether there was a redundancy situation and whether the selection was fair. The appendices attached to that investigation should not be disclosed as they are only relating to certain funding and not to the issue."
She held that disclosure of an associated report should not be made: She said:- "I do not order the disclosure of the report on the role played by Ron Ludgate as it is not relevant……" And she goes on to say that it added nothing to the report on Linda Gardner. Her final paragraph says: "13 I order therefore that the Respondents disclose to the Applicant this report within 14 days i.e. by May 12 th 2000".[9]Apparently there was then a stay pending this appeal. On 30 May the Employment Appeal Tribunal received Brent's Notice of Appeal. On 6 June, the Applicants resisted the Brent appeal and, looking a little to the future, the 16 - 20 October of this year are the dates fixed for the hearing of the substantive case at the Employment Tribunal level.[10]We have been shown the document that is in issue. We have not seen the appendices which Mrs Prevezer, as Chairman, saw. There have been some difficulties about how practically best to proceed and some comments need to be made. First of all, this is so to speak, an all or nothing case. At no stage have Brent prepared or redacted copies of the report and have then argued that part could be shown and part not The issue is whether the whole of the report should be disclosed or, more particularly, whether there is error of law in the Chairman's decision in that regard.[11]Then next it has to be noted that there has been, strictly speaking, no plea of confidentiality in the document. It is not every document that is confidential and one certainly does not make a document confidential by simply saying that one would rather it was not in the public domain. There is no affidavit as to the confidentiality of this particular document. Thirdly, argument has been very much constrained because, of course, the Applicants have not seen the document so that when Mr Hyham assures us or asserts to us that it is not relevant on this subject or that, they have not been in a position to say "Oh yes it is" or even to accept that "Oh no, it isn't" because they have not got the document and have not seen it. Equally, when Mr Hyham does argue that there is relevance in the document, it has been difficult for us to answer because we cannot, in practical terms, quote back passages from the report to him without destroying the Council's argument that the contents of the document should not be given over to the Applicants, and, indeed, the position could have arisen if Mr Hyhams had been unwise enough to cite particular passages, that he would automatically have given away those passages and have put them into the Applicants' hands. So there are difficulties about a convenient approach to this sort of case which have slightly bedevilled the argument.[12]We mentioned earlier that there was now an Amended Originating Application and an Amended Notice of Appearance. In it, Ms Leader - and we are just looking at Ms Leader's document - asserts that there was a reorganisation of the local authority's operations to involve a company called "Options Development Agency Limited", often referred to as ODA. The case asserted in the Originating Application is that the reorganisation involving ODA was, firstly, promoted by Linda Gardner; secondly, that it was plain that Linda Gardner promoted Ms Leader's redundancy; thirdly, that the redundancy was actually proposed by Ms Gardner; fourthly that the reorganisation involved the re-titling of workers but that that re-titling was a sham to give the appearance of a redundancy situation; fifthly, it was said that the sham was actually created by Ms Gardner, sixthly it was said that the sham was created in order to promote Ms Gardner's own interests; seventhly, that Ms Leader questioned the legality of the financing involved in the reorganisation, and, eighthly, that Ms Leader was then transferred to another post. It does not in terms say that that was a direct result of her having questioned the legality but that is the inference which I would think Ms Leader will be intending to draw.[13]In answer, Brent raises a number of issues. I will not need to refer to all of them but it denies that it reorganised itself by channelling business finances through ODA and it says there is no connection between ODA, the setting up of a further education centre at Strathcona and the redundancies consequent upon that setting up. That gives some flavour, not necessarily a full one, of some, at least, of the issues that are asserted on one hand and countered on the other.[14]The Chairman, Mrs Prevezer, was, of course, aware of the contents of the prior Directions Hearing as to the issues in the case; we are not and, indeed, I am not sure whether the amended pleadings emerged only after that, but we do not have the full picture of the procedural history of the case as fully in mind as the Chairman, Mrs Prevezer, must have had it.[15]We have now had, of course, the report. We have heard argument from Mr Hyhams that it is of no relevance at all to the issues in the case. It is difficult for us to give chapter and verse of why we think there may be relevance because if we quote precisely what relevance we see, that, as we indicated, would put the matter automatically into the hands of the Applicants and any further appeal would be stultified. So we have had to make our own assessment of relevance and as to how far the material that is in the report could be fairly described as being properly disclosable as necessary for a just and appropriate conclusion to the proceedings. We have had no evidence put in front of us at all.[16]The report is plainly not merely a collection of hearsay because the Notice of Appeal makes that tolerably plain. The Notice of Appeal at paragraph 6.(1)(c) says (with our emphasis):- "6.(c) Even if the report concerned matters which were relevant to the case of the Respondents, the report could be of no value in any event, since it consists of hearsay evidence and conclusions on matters of fact which it is for the Tribunal to determine. Those conclusions are at best only opinion evidence of a person whose evidence would not be admissible in evidence before the Tribunal (whether as an expert or otherwise)." The identity of the person is known to us, but not identified, possibly, to the Applicants and we cannot rule upon whether it is manifest that the person is such that his or her evidence would not be admissible before the Tribunal, whether as an expert or otherwise.[17]Brent, the Appellant, ( even the Appellant, one might put it) says that Ms Gardner was involved in the decision to dismiss the Appellants: in paragraph 3 of the Notice of Appeal , describing the document, Brent says it is:
"a document setting out the conclusions of an employee of the Appellant in connection with the actions of Ms Linda Gardner, a manager of the Appellant who was involved in the decisions of the Appellant to dismiss those applicants"
. So there is no doubt at all that Ms Gardner does have a close connection with the events complained of.[18]Moreover, in a later passage, and we are now looking at paragraph 6(f) of the Notice of Appeal, it says: (f) The contents of the report could show at best only Ms Gardner had something which she might have wished to hide, and a possible motive for selecting the Respondents for redundancy." Well, whether or not the report does or does not say that, it is there accepted that the report might show a possible motive for selecting the Respondents for redundancy, which is difficult to describe as a wholly irrelevant issue.[19]In paragraph 6(3) of the Notice of Appeal, the notice (with our emphasis) reads as follows:
"(3) The Tribunal's decision was reached in part on the basis that the report is relevant to show "whether there was a proper redundancy situation or whether [the Respondents] should have been transferred under the Transfer of Undertakings Regulations." … In so deciding the Tribunal took in to account an irrelevant factor, since none of the Respondents has claimed that he or she should have been transferred under the Transfer of Undertakings (Protection of Employment) Regulations"
But, even if for that reason, namely that there is no issue as to the Transfer of Undertakings, one were to strike out one of the two passages that are linked by the word "or", one still has the first one, namely, whether there was a proper redundancy situation, standing and one cannot therefore, by striking out one of the alternatives, strike out the effect of the whole passage.[20]The Notice of Appeal then says at 6(4): (4) The Tribunal's decision is based on a fundamentally flawed understanding of the circumstances. In paragraph 6 of the extended reasons of the Tribunal, it is said that(1) the report and(2) a separate report on the actions of Mr Ron Ludgate, Ms Gardner's manager, "were the result of investigations into the funding and the financial responsibility of Linda Gardner and Ron Ludgate in relation to the establishment of ODA Ltd and the transfer of the units in which the [Respondents] were employed to ODA Ltd". This is mistaken: there was no "transfer of the units in which the [Respondents] were employed" to ODA. Furthermore, the Respondents allege that their jobs are currently being done by care assistants employed by the Appellant". But that simply confuses the reason for the report and its contents.[21]We have been taken to a number of authorities by Mr Hyhams and they have to a varying extent, I hope, guided us, but what we have to remember is that this is not an occasion at first instance, so to speak: this is an appeal; moreover, since Employment Tribunal Rule 4(1)(a) controls the discretion and itself refers to yet another discretion, the discretion which the Circuit Court has as to ordering or not ordering discovery, what we have to examine is a discretion exercised by someone else. We do have grave doubts as to whether, had we been the body at first instance, we would have ordered discovery; it is only a report by an individual third party and it is far from being wholly of relevance to the allegations which I have described. But that is not to say that a decision that it was discoverable is so beyond the pale as to indicate perversity on the part of the Chairman concerned, which is one of the ways in which Mr Hyhams puts his argument. We have to ask ourselves whether we are satisfied that it has been shown to us that the Chairman either took into account that which she should not have taken into account or failed to take into account that which she should have taken into account or has otherwise so erred in principle in law that no Chairman instructing herself could have acted as she did.[22]Well, she did in some respects have a fuller grasp of the matter than we could hope to have in the sense that she knew the procedural history to a better degree than we can aspire to today and she did read the report and she did find it, as we have said, important and relevant. We do not feel able to say, looking at the issues that we have described as arising out of Ms Leader's IT1, that the document is without relevance, particularly, perhaps, to the ones I described as number 1, number 6 and number 7.[23]We are not satisfied that the Chairman erred in law. We think there will be a degree of disappointment on the Applicants' side when they see the document; it may well be that simply by declining to allow it to be seen Brent has inflated the importance of the document, but that is not a matter for us. We do need to caution the Applicants to remind them, because they are not under legal advice at any rate before us, that on our upholding the Chairman's decision and allowing the document therefore to be disclosed to them, they must bear in mind that the law is that the document is to be used only for the purposes of the litigation, at all events unless the Court or Tribunal otherwise orders, and that it can indeed be a contempt of court or contempt of the Tribunal to use it in any other way. It is to be used only for the purposes of the litigation.[24]The difference between the view that we might have taken had we been at first instance and the view that is taken when we bear in mind that we are merely looking at a discretion exercise by someone else, seems to us to be crucial to the answer in this case and, as we have indicated, properly limiting ourselves to whether we are satisfied that the Chairman erred in law and, bearing in mind the difficulty that we have in spelling out precise reasons, we come to the conclusion that we are not satisfied that there was error of law and accordingly dismiss the appeal.