MS N SIVANANDAN v HACKNEY ACTION FOR RACE EQUALITY (H.A.R.E.) [2001] UKEAT 1145_00_0102

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1145_00_0102Case No Appeal No. EAT/1145/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS N SIVANANDANAPPELLANTHACKNEY ACTION FOR RACE EQUALITY (H.A.R.E.)RESPONDENT
Before
His Honour Judge CollinsDate 1 February 2001
[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON For the Respondents MISS K GALLAFENT (of Counsel) Messrs Akainyah & Co Solicitors 308 Seven Sisters Road London N4 2AG JUDGE COLLINS : This is an appeal against the decision of an Employment Tribunal, whose extended reasons were promulgated on 31st July 2000. It was an interlocutory hearing and the order appealed from was for disclosure under paragraph 4 of Schedule 4 to the Employment Tribunals (Constitution etc.) Regulations 1993 . The history necessary to understand this application can be stated very briefly and I borrow the chronology from Miss Gallafent's skeleton submissions.[2]On 13th October 1998 Ms Sivanandan lodged an application to the Employment Tribunal alleging that she had been the victim of discrimination on race and sex grounds in the failure to appoint her to the position of locum Director of the first respondents, Hackney Action for Racial Equality. It so happens that an Afro-Caribbean woman, as we understand it, was appointed to the post. There were subsequently a number of hearings; one on 22nd January 1999 when the appellant was unable to attend because of ill health. There was also a hearing on 25th March 1999 at which directions were given. The appellant appealed against that. Her appeal was heard at this tribunal on 20th October 1999. There was a further hearing on 21st February 2000 when directions were given. The case was fixed for hearing for six day beginning 24th July 2000.[3]Ms Sivanandan has treated her case very seriously and she presented a substantial case to the tribunal. In the course of the third day of the hearing, as we understand it, Ms Sivanandan was still giving her evidence in chief and was giving quite detailed evidence about the chronology of a variety of matters, indicating that she supported her recollection by reference to her diaries which were present in Court and to which she drew attention. There was then a considerable discussion about the status of the diaries and, not surprisingly, Miss Gallafent, who appeared before the tribunal as she appeared before us, wanted to see them. After some discussion the tribunal made the order in the terms of the order recited in their reasons:
"… the applicant must disclose to the respondent within 14 days of the date of promulgation of this decision the diaries and other contemporaneous notes and records maintained by her during the period January 1997 to 23 July 2000."
It will be borne in mind, as I have said, that the application was lodged on 13th October 1998 and it related to a complaint about matters which culminated in the letter of 15th July 1998 informing her that she was unsuccessful for the post, but notwithstanding that, the tribunal ordered disclosure up until the day before the hearing for the reasons which they gave.[4]The practical result was that Ms Sivanandan objected to the order, and indicated that she wanted to appeal. It would have been possible for this Appeal Tribunal to have heard the appeal at 2 o'clock on the following afternoon, which meant that the matter could have been disposed of and the hearing could have been resumed. Unfortunately, that course was not embarked on. It has taken this interlocutory hearing appeal six months to get on and this case, which is no doubt one which causes a lot of anxiety for both the appellant and the respondents, who have to deal with it, with dragging on until a resumed hearing can be arranged, when one might have hoped it could have been disposed of long ago. But these practical matters which I have mentioned do not directly concern us today.[5]The reasons for the tribunal's decision are set out quite shortly. They said this:
"6 … Ms Sivanandan has sought to place reliance upon those records as tending to show that it is more likely than not that her evidence is accurate. Without such reliance, the records would be discoverable as of direct relevant to matters in dispute; what was said and done, when and by whom? …"
Then in paragraph 7 of their reasons the tribunal indicate why they provide such an extensive time frame for disclosure. It is clear from paragraph 7 that many of the matters after 15th July 1998 must, certainly so far as Ms Sivanandan's diary is concerned, go to matters of credit rather than directly refer to the matter of the alleged discrimination which, according to her, was completed by 15th July 1998. There are alleged to be references to improper conduct in the handling of interlocutory matters and so on, which are said to give force to her case that she was discriminated against in the early part of 1998.[6]In paragraph 8 the tribunal say this:
"At this stage of the proceedings, it is impossible for the tribunal to accept or reject those assertions or to rule that they have no relevance to its determination. …"
We doubt very much whether it can possibly be right as a matter of law for a tribunal to make an order for discovery on the ground that it is not satisfied that the documents are not relevant. Discovery can only be justified if the tribunal comes to the conclusion that they are likely to be relevant. So, it seems to us, that the tribunal propounded the wrong test when it set out in the first sentence of paragraph 8 the basis on which it proceeded.[7]In paragraph 11 the tribunal said this:
"In giving its decision the tribunal sought to recognise that there would be entries in the diaries of no conceivable relevance to issues in the case and in which Ms Sivanandan would have a legitimate right to confidentiality. It was said that the parties could seek agreement as to those entries that should not appear in the public domain or, in the event of difficulty, they could be referred to the chairman to rule on their relevance."
There is every reason to suppose that Ms Sivanandan's diaries and I suppose 'other contemporaneous notes and records', although there is no clear indication of what other contemporaneous notes and records there might be, will contain personal and confidential material and, certainly, material relating to a vast range of matters, which have nothing to do with the case before the tribunal. It does not seem to us that the tribunal dealt with this issue adequately in paragraph 11 of its reasons. After all, the order is for her to disclose these documents to the respondents. Why should the appellant be in the position that she would have to disclose all her confidential documents to the respondents, as the tribunal suggests that she should, and then attempt to agree with them what is relevant or not. It seems to us that the form and content of the order which was made is oppressive. It required her to disclose to the respondents matters which they could have no conceivable interest in. The tribunal made its decision, not on the ground that it thought the documents were relevant, but that it was not satisfied that they were not relevant.[8]The correct approach, in our judgment, if the diaries or any part of the diaries were relevant as evidence, would be for the tribunal to have identified the class of entry which was relevant to be disclosed and ordering the disclosure of that class of entry only. It would have been quite simple using photocopying to blank out the personal parts and disclose those parts which were relevant. There is no difficulty about doing that, but the blanket order which the tribunal made was, in our judgment, oppressive.[9]The tribunal had extensive powers under paragraph 9 of Schedule 1 to the 1993 Rules to manage the hearing before it and it might have been thought appropriate for the tribunal to attempt to concentrate the minds of the parties and its own mind on the issues which were directly relevant to the application, namely whether or not there was discrimination leading up to the letter of 15th July 1998. It is very difficult to see that ordering disclosure of diaries from January 1997 to 23rd July 2000, although it may have related to issues which were raised by Ms Sivanandan, were necessary to dispose of the real issues which were before the tribunal. So we think, in all the circumstances, the order for discovery was oppressive and excessive. We allow the appeal and quash the order.[10]From a practical point of view, although the tribunal now must consider its own procedure, we hope that the case will be listed as soon as possible for sufficient time to hear the evidence and be disposed of as swiftly as possible. Ms Sivanandan must recognise that unless she is in a position to satisfy the tribunal that she really has lost the diaries, which she now says she has, the tribunal may feel obliged out of ordinary fairness to the respondents to draw an adverse inference against Ms Sivanandan if the tribunal thinks that there are diaries available to substantiate evidence and she declines to put them forward.