MR T B NICHOLLS v C L I LTD [2003] UKEAT 0327_03_0605

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0327_03_0605Case No Appeal No. EAT/0327/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR T B NICHOLLSAPPELLANTC L I LTDRESPONDENT
Before
His Honour Judge J McMullenDate 6 May 2003
[1]APPEARANCES For the Appellant MR T B NICHOLLS (the Appellant in Person) For the Respondent No Appearance, Representations in Writing HIS HONOUR JUDGE J McMULLEN QC This is an appeal against an Order made by an Employment Tribunal Chairman sitting at Southampton on 30 April 2003. It follows upon previous successful appeals brought by Mr Nicholls to the EAT before Mr Justice Nelson and members on 9 July 2002 and before myself.[2]The Applicant is involved in an unfair dismissal hearing which has gone part-heard having had two days of evidence, principally from the Respondents, and the Applicant is due to return to give evidence himself on 8 May 2003.[3]I directed on 2 May 2003 that there be a hearing of this matter today at 2.00pm. Mr Nicholls has himself come and provided me with a bundle. We have also heard from Peninsula Business Services Ltd representing the Respondent who have indicated they will not be coming but have put before me a letter dated 6 May together with their previous letter of 21 March 2003 directed to the Southampton Employment Tribunal. Both of these letters have been given to the Applicant and he tells me, and I am surprised to hear it, that he had not seen the letter of 21 March 2003, since I would have expected that either to have been copied by Peninsula to the Applicant or for the Tribunal to have sent it to the Applicant.[4]Nevertheless, the essential issue in today's appeal is the Applicant's request that the Respondent disclose certain material. He first set these out in a letter to the Chairman in which he mistakenly asked for leave for the Respondent to disclose the material. That, he accepts, was an unsatisfactory way of describing it, but he has explained to me why he did it and that is because his evidence having finished he thought he needed leave from the Chairman to ask further questions about documents, and needed permission to ask the Respondent to produce the material.[5]The Chairman has responded using more or less the same language as the Applicant. This matter has, however, become clarified in the letter sent by the Tribunal on 30 April 2003 which contains the following:
"The Chairman has directed me to inform you that he has granted leave for the Respondents to disclose the documents requested. If the Respondents wish a formal order to be issued Mr Simpson [the Chairman] suggests you write to their representative and ask them to make the formal request as clearly the request should come form [sic] them."
[6]It seems to me there are a number of errors in this approach. It is the Applicant, not the Respondent, who is seeking what is now regarded as an Order. All references to leave seem to be inappropriate and it became clear to me at once that the Applicant was seeking disclosure from a reluctant Respondent of the material.[7]The letter does not make sense. The gist of this appeal is that the Chairman erroneously failed to exercise his case management duties or his discretion in the conduct of the case in failing to accede to the Applicant's request. That is a high threshold for the Applicant to overcome but I am conscious that this is the third visit of the Applicant to the Employment Appeal Tribunal seeking to obtain basic documentation in order to support his claim and it has been necessary on the previous two occasions and now, as will be clear, on this occasion, for a judge of the EAT to direct that various materials be disclosed.[8]I am able to intervene because of the plain errors in the letter of 30 April. As Mr Nicholls says, it is clear the Chairman regarded the material as relevant, for otherwise he would not have taken the matter any further. Thus, it seems to me, relevant material is here and an Employment Tribunal does not have a discretion to exclude relevant probative material. This material is in the hands of the Respondent and will not be disclosed without an Order.[9]I have the power under section 35 of the Employment Tribunals Act 1996 to make such orders as may be made by the Chairman and for the saving of time I will make the Order that the Respondent disclose its VAT return for October 2001 and the monthly financial reports issued to its bankers, Lloyds, for September, October and November 2001.[10]I further direct that this material be disclosed to the Applicant by 4.00pm 7 May 2003 and that at the resumed hearing the Applicant is entitled to question the officers of the Respondent upon the substance of that material. The appeal is allowed.