MR S P PETRIDES v DIRECT LINE GROUP SERVICES LTD [2001] UKEAT 0457_01_0905

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 0457_01_0905

Case No Appeal No. EAT/0457/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR S P PETRIDESAPPELLANT

DIRECT LINE GROUP SERVICES LTDRESPONDENT

Before

Sir Christopher Bellamy

Date 9 May 2001

[1]APPEARANCES For the Appellant MR PETRIDES (the Appellant in person) For the Respondent MISS ALISON RUSSELL (of Counsel) Messrs Argles Stoneham Burstows Solicitors Stoneham House 17 Scarbrook Road Croydon Surrey CR0 1SQ SIR CHRISTOPHER BELLAMY QC This is an Interlocutory Appeal from the decision of the Employment Tribunal sitting at Bedford dated 22 March 2001 and more particularly the decision of the chairman of that Tribunal sitting alone on that date. By that decision the chairman of the Tribunal made certain directions in the proceedings for unfair dismissal which the Applicant, Mr Petrides has commenced against the Respondent, Direct Line Group Services Ltd.

[2]By those directions the learned chairman ordered the supply of certain further information to the Applicant but refused other applications made by him for the attendance of witnesses and the disclosure of documents.

[3]That order followed an earlier order for directions also made by a chairman of the Employment Tribunal sitting alone, in that case the order of Mrs Silverman, chairman of the London South Tribunal which is dated 9 October 2000. We understand that subsequent to that order the proceedings were in fact transferred from London South to Bedford because of a possible conflict of interest as regards one of the witnesses of the case who is apparently a lay member of the Employment Tribunals in London South.

[4]At all events the earlier order made by Mrs Silverman which is dated 9 October 2000 did order discovery by way of list, and the exchange of witness statements, but refused certain other discovery sought by the Applicant. It is common ground that the Applicant, although he has explained to us why, did not appeal that order for directions by Mrs Silverman. In fact, the request that the Applicant repeated before the Tribunal chairman at Bedford, which led to the decision of 22 March 2001, effectively repeated the request for the disclosure of documents that had been sought by the Applicant at the earlier hearing before Mrs Silverman. The documents sought were those set out in a letter of the Applicant of 27 March 2000, which asks for very extensive disclosure of documents. It was that letter that was apparently before both Tribunal chairmen.

[5]That is the background to this matter. In approaching it of course we have to bear in mind that we as The Employment Appeal Tribunal have jurisdiction only to determine whether there has been an error of law in the decision appealed against, that is to say the decision dated 22 March 2001. It is only if an error of law can be established that we are in a position to interfere with the directions given by the learned chairman.

[6]We will deal first with the issue of the documents. In his appeal to this Tribunal the Applicant has in fact limited himself to five documents from the so called "comments screens", which he says would be a sufficient sample of documents to be disclosed for his purposes. He says that those documents go to his allegation that others who were employed with him did not properly cover for him when he was away, as they should have done, leaving him with more work to do when he came back and insufficient time in which to do it. That would be relevant to allegations apparently made against him about his performance. There are, he says, about two pages for each document, so he is seeking discovery of about ten pages of documents in all. I have put the matter very briefly.

[7]The Respondent replies, that the issue in the case is one of a breakdown of trust and confidence. The question of the Applicant's performance and conduct may be relevant to some extent as background in the evidence but only in a subsidiary way. The Applicant, so the Respondent argues, has already had two chances to request these documents. The request was first refused at the initial hearing in October 2000 and the Applicant was estopped from repeating that request before the second Tribunal that sat in March 2001. In any event there was no error of law as regards the chairman's approach to the matter of documents in the decision appealed against. In particular, no error appears from paragraph 6 of that decision where the learned chairman says:

"The discovery there sought [that is to say a discovery of the files enumerated in the letter dated 27 March 2000] is wide ranging, extensive and in my view oppressive. It is not essential to the just disposal of the case and I consequently decline to make the Order."

[8]It is true that the documents, in the limited form that the defendant now seeks to obtain on this appeal, were all mentioned in the letter of 27 March 2000. However, the principle that we have to apply in a case like this, is that it is essentially for the chairman of the Tribunal to review the question of the relevance of documents and the need for disclosure in the light of the case as it appears to the chairman and it is only if we can satisfy ourselves that the chairman has taken a decision which contains an error of law or is one that no reasonable chairman could make, that we can interfere.

[9]We have come to the conclusion having heard all the arguments that we are not satisfied that the chairman has made any error of law and it has not been established before us that this was a decision that no reasonable chairman could make. We are therefore of the view that no error of law has been made out in this case. We would add on this part of the application that, as far as can be determined, the Applicant did not pursue before the learned chairman the more limited request for documents that he has pursued before us. We agree with the Respondent that we cannot deal with the case on the basis that the chairman made an error of law in not dealing with a more limited request when that more limited request was not made to the chairman. So the position in law is that we can detect no relevant error.

[10]That said, however, it is apparent that the Applicant has now limited his request to these five documents. It is further apparently the case that his performance might still at least to some extend be relevant as an issue in the case, if only by way of background. In those circumstances we would particularly invite the Respondent to seriously consider whether in any event it would be appropriate to supply the Applicant with the documents requested. As re-formulated the request does not, at least at first sight, appear to be oppressive or wide ranging, and we can see considerations which would suggest that in the interests of fairness and to avoid any inadvertent procedural mishap it might be appropriate for the Respondent to reconsider its position on that particular matter.

[11]We turn therefore to the question of the witnesses. The Applicant essentially seeks witness orders in relation to three different categories of witnesses. As far, first of all, as the directors of the company are concerned, apparently Ms Swetenham and Vanessa Rees are due to give evidence in this matter and the Applicant indicates that he would wish Annette Court to be substituted as far as Vanessa Rees is concerned as a witness in this case. There are then a number of employees who were apparently in some way associated with some earlier complaints about the Applicant whose names have been given to us, amounting to some four witnesses in all. Lastly, there is Mrs Glanville who was the supervisor in question and a Mr Perkins who the Applicant also considers was acting unfairly. In relation to those two latter witnesses, the Applicant has put written questions to them. Those have been answered albeit, according to the Applicant, inadequately. The Applicant has been served with the witness statements of these two witnesses. However, the Respondents themselves do not propose to call them. The Respondents do not propose to call any of the witnesses that the Applicant seeks to be called.

[12]The way the learned chairman approached this matter is set out at paragraph 7 of her decision in this case, which reads as follows:

"The Applicant also seeks Witness Orders to compel the attendance of some ten witnesses [I think on the basis of what I have just said, that is now reduced to about seven witnesses] including the Respondent's Chief Executive and Managing Director [that is a request that as I understand it is not being pursued at the moment] at the hearing to give evidence. He does not know what these witnesses would have to say. He merely wishes to cross examine them. He has already sought to ask questions of two of those witnesses namely Mrs A Glanville and Mr S Perkins. The Respondent has put the questions to both Mrs Glanville and Mr Perkins who have answered them and the Respondent has produced statements incorporating their answers to the Applicant. It is not the Respondent's intention to call them as witnesses. The witnesses who are being called by the Respondent can give direct evidence as to the matters to which Mrs Glanville and to a lesser extend Mr Perkins can testify. I will not compel the Respondent to call witnesses for that is a matter for them and their advisors. The only reason Mr Petrides seeks the attendance of these witnesses is to ask them questions. I carefully explained to him that any witnesses compelled to attend by a Witness Order issued at his request, cannot be cross examined by him. Mr Petrides was unable to state the relevance of the witnesses whom he intended to call …… [I leave out a short passage] . I therefore decline to make any orders compelling witnesses to attend because the relevance of their evidence was not made out. The witnesses will not come voluntarily; the Applicant does know what the witnesses will say and merely seeks to secure their attendance for the purposes of cross examination despite what I explained to him. That cannot be right. All that this will achieve is to cause maximum disruption to the Respondent which is not the purpose of a Witness Order"

. We have carefully examined that passage but we can find no error of law in the approach adopted by the learned chairman. The result therefore is that for the reasons we given this appeal is dismissed.