MRS S MATTHEWS v THE CHIEF CONSTABLE OF SOUTH WALES POLICE [2001] UKEAT 246_01_0304

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 246_01_0304

Case No Appeal No. EAT/246/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS S MATTHEWSAPPELLANT

THE CHIEF CONSTABLE OF SOUTH WALES POLICERESPONDENT

Before

Mr Justice Lindsay

Date 3 April 2001

[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT MR JUSTICE LINDSAY We have before us as a Preliminary Hearing the Appeal of Mrs S Matthews in the matter Mrs S Matthews against the Chief Constable of South Wales Police. No-one appears before us today. It has been indicated from Mrs Matthews' side that she would not be attending and so we deal with it on the papers that we have been sent.

[2]On 9 June 2000 Mrs Matthews lodged an IT1 for unfair dismissal. She had been employed some 10 years. She said:

"After ten years of dedicated service, my contract was terminated after ten months off work suffering from stress/anxiety and latterly Depression due to being bullied at work, and additionally harassed at home whilst recovering from surgery."

[3]The Respondent Police put in an IT3 which, in fact, is not in our papers but later there were some particulars served on the part of the Police on 3 July 2000, when they said: "The Applicant who was employed as a Traffic Warden by South Wales Police had been continuously absent from work and on protracted sick leave since 13 th May 1999 and as such has been unable to perform the duties of a Traffic Warden. On the 21 st December 1999 the Respondent arranged for the Applicant to be medically examined by Dr Davies, the Occupational Health Consultant at South Wales Police. Dr Davies found that the Applicant was not suitable for a medical retirement and that the Applicant's condition was such that she was not permanently incapable of discharging her duties but nevertheless was unable to return to work in the foreseeable future. They said that Mrs Matthews had been given 12 weeks notice, that no alternative job could be found for her and that in the circumstances the dismissal was fair. That was the employer's case.

[4]On 15 January 2001 there was a Pre-Hearing Review at the Employment Tribunal and it transpired that there was a current investigation at the Police into bullying. It was not appropriate, in the Tribunal's view, to make an order in the Police Force's favour under rule 7(4) (which is the rule under which, where only a weak case is shown by an Applicant, a deposit could be demanded to be paid and lodged in order to protect the Respondent later to some extent against cost.) The case, at 15 January, was regarded as not being one that was in any way then ready to be heard.

[5]On 22 February 2001 a Notice of Appeal was received from Mrs Matthews on the basis that discovery had not been ordered in her favour. In the Notice of Appeal at paragraph 3 which begins :

"The appellant appeals from (here give particulars of the decision of the employment tribunal from which the appeal is brought, including the date):- She added this: "

TRIBUNAL DECIDED IT WAS NOT APPROPRIATE TO MAKE AN ORDER FOR DISCOVERY UNDER RULE 7(4). DECISION DATED 15 TH OF JANUARY 2001." And a little later in paragraph 6, which begins:- "The grounds upon which this appeal is brought are that the employment tribunal erred in law in that (here set out in paragraphs the various grounds of appeal):-" She wrote:

"(1) There is no principle of law whereby confidential documents are excluded from discovery, merely because they are deemed confidential. (2) With the confidential documents necessary for the fair disposal of proceedings, the tribunal have erred in law, in elevating confidentiality over and above the key requirement of the fair disposal of the proceedings."

[6]The Notice of Appeal is spectacularly misconceived. Rule 7(4) is nothing to do with discovery. The position is that when the case came before the Employment Tribunal on 15 January 2001 Mrs Matthews' case was seen to be far from sufficiently identified. The position was, it then transpired upon the Tribunal being addressed on her behalf, that allegations as to bullying were to be added or might need to be added, perhaps depending on the outcome of the Police's internal investigation and, secondly, further statutory grounds were indicated as being such as Mrs Matthews would or might wish to rely upon them.

[7]The Tribunal took the view that Further and Better Particulars from the Applicant would be necessary. What they said is this:

"It follows that at a suitable time the applicant will be required to set out a detailed account of all facts and matters alleged with sufficient particulars for the respondent to reply. It will be for the tribunal to decide whether any question of the statutory time limit is raised thereby."

So the statutory time limit also would need to be considered, and the Tribunal said:

"Only when the issues have been clearly identified as a result of the foregoing would it be appropriate for the tribunal or a chairman to decide what Interlocutory Orders should be made."

[8]It was, in our view, entirely appropriate for the Employment Tribunal not to order disclosure at least until the issues had sufficiently been defined. Discovery is granted under rule 4(1). It is not a process under which an Applicant has the right to call for all papers from the other side and then is able to compose his or her case out of whatever papers they have received. Rather it is that an Applicant has to state his or her case and then, at the discretion of the Tribunal, may or may not be granted discovery of documents relative to that case.

[9]As the position is, in the Employment Tribunal's view, that the case has not yet been sufficiently particularised, it is quite appropriate for the Tribunal not yet to have ordered discovery. We see no conceivable error, let alone arguable error, of law in the matter and accordingly dismiss the Appeal even at this preliminary stage.