MR A SANUSI v (1) B OF HACKNEY (2) MR C CORTEZ (3) MR I HOOK (4) MR M CALLED (5) MS C SMITH (6) MS L TROUGHTON [2003] UKEAT 1176_02_3107

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 1176_02_3107Case No Appeal No. EAT/1176/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A SANUSIAPPELLANT(1) B OF HACKNEY (2) MR C CORTEZ (3) MR I HOOK (4) MR M CALLED (5) MS C SMITH (6) MS L TROUGHTONRESPONDENTS
Before
His Honour Judge D M LevyDate 31 July 2003
[1]APPEARANCES For the Appellant MR SHELDON (of Counsel) For the Respondents MR PAUL EPSTEIN (of Counsel) Messrs Akainyah & Co Solicitors 308 Seven Sisters Road Finsbury Park London N4 2AG HIS HONOUR JUDGE D M LEVY QC This is an appeal from a decision of a Chairman of an Employment Tribunal sitting in Central London on 15 November 2002, which was promulgated on 28 November 2002. The issue before him was whether discovery, which the Appellant, then in person, sought, should be given to him. The Respondent at the Preliminary Hearing was represented by Mr Epstein, of Counsel. Today the Appellant is represented by Mr Sheldon, of Counsel, and Mr Epstein again appears for the Respondent.[2]The issue arises out of a number of proceedings, which have been consolidated, brought by the Appellant against his former employer, the fourth Respondent, and three named Respondents at the London Borough of Hackney in which race discrimination was claimed.[3]The decision of the Chairman came before the Employment Appeal Tribunal's President at a Preliminary Hearing on 26 March. A short judgment was given by the President who said this:
"3 So far as the first three categories are concerned, they relate to findings and reports in respect of the first three categories and a report on the third, in relation to investigations which are alleged to concern white employees in, possibly, similar circumstances, which may not have resulted in the same disciplinary remedy as followed in the case of this Appellant, so that he may be able to treat them as exemplars or hypothetical comparators, or possibly even actual comparators. He is not in a position to give any more information than he has done, which is sufficient to identify the reports by name, though they have not been so identified, quite rightly, in the applications or decisions. 4 The Chairman noted that the reports were confidential and appears to have concluded that there were no grounds shown as to why disclosure of those documents was relevant or necessary. [That was the agreed test before him] He has not specifically referred to the test, which, it is common ground, is not simply of relevance but also necessity, and certainly not to a recent decision of Simbatola -v- Elizabeth Fry Hostel [2001] EWCA Civ 1371 , in which the well established Nasse procedure (by reference to Science Research Council -v- Nasse [1979] QB 144), in relation to confidential documents, was expressly said by Lord Justice Keene to continue to apply, namely that, in the event of confidential situations, the Court was entitled, if not obliged, to look at the documents, itself, in order to form a view as to whether the contents, which they would thus have seen, without disclosure to the person seeking that disclosure, appear to be relevant or necessary to the issue in the case, having been given sufficient explanation before it took that course."
[4]Mr Epstein submitted to me that having looked at the Chairman's reasons, they could not be criticised on the test which was before him. In my judgment, the President spotted the point on which it is necessary for an application such as that made by the Respondent to reply positively on, ie – give the Tribunal the opportunity to see the documents which it does have, where disclosure is refused.[5]In those circumstances, I have looked at a memorandum of the Council which has been specified in the context of the documents sought, which have been prepared having regard to the President's judgment, and I have looked also at certain of the council's materials, as requested by Mr Sheldon in respect of this application, namely the conduct of the disciplinary procedure, and a letter dated 7 September on a whistle blower, relating to one of the comparators he has named.[6]With that introduction I turn to a letter dated 22 August 2002, which is the genesis of this application. In that letter, written to the Respondent's solicitors, the Appellant asks for copies of a number of documents from the Respondent; three of these are the subject of this appeal:
"1 Findings and report of the Internal Audit investigation in respect of the whistleblowing allegations made by PW against SL. 2 Findings and report of the Internal Audit financial irregularities investigation concerning Petty Cash claims made by AK …. 3 Report of the investigation into allegations of financial irregularities made against GT … "
Further in the letter the Appellant writes:
"Items 1 to 3 would specifically be used as comparators in accordance with provisions section 3(4) Race Relations Act 1976. One aspect of my complaint of racial discrimination is that I was suspended from work on the basis of an allegation of breaches of financial regulations." "
Items 1 to 3 would also show that when similar allegations were made against these white officers, they were not suspended and that no disciplinary proceedings then ensued."[7]As a result of the President's order on 9 July 2003, CHP wrote to PD in these terms:
"We are ordered by the President - Mr Justice Burton - in the EAT to produce at the substantive hearing the following documents – 1 Findings and report of the Internal Audit Investigation in respect of the whistle blowing allegation made by PW against DL." and sets out the other two documents, and at the bottom of the page it says: "
It is essential these documents are made available to me within the next 8 to 10 days. Please let me know if you can assist urgently." To that PD replied by email dated 15 July 2003. Part of his reply read:
"1 There was no formal report published in relation to SL. A summary of findings was produced and this was sent to IH and I believe CC. Please see attached! 2 The petty cash investigation was not into any particular individual, it focused on claims submitted by staff from various Directorates. It was part of a wider review of petty cash arrangements across the Council and no report was produced – other than a more general report into the systems and processes underpinning the arrangements for petty cash. 3 There were 2 reports issued to IH and JP in respect of GT and these are attached."
I have had the opportunity to read these four documents.[8]The report of the internal audit commission in respect of the whistle blowing allegations (item one) are not likely to be of any assistance at all to the Appellant in the matters of which he complains, and therefore they need not be disclosed.[9]There are two reports in respect of the GT investigation reports. The first is dated 8 February 2002 and in my judgment there is material which may, I do not say will, be of assistance to the Appellant in his claim and with the appropriate redactions, it seems to me, that that should be disclosed. The fourth document which I have seen is an investigation, a further report on that, dated 15 February 2002. Having looked carefully through that there is nothing in that document which might be of assistance to the Appellant and accordingly I do not think that should be disclosed.[10]So far as the finding and report of the internal audit financial irregularities investigations concerning petty cash claims made by AK …, the report to PD said this at paragraph 2:
"The petty cash investigation was not into any particular individual, it focused on claims submitted by staff from various directorates. It was part of a wider review of petty cash arrangements across the council and no report was produced other than the general report into the systems and processes underpinning the arrangements for petty cash."
I have not seen that general report, I therefore cannot say whether there is anything in it which might or might not be of assistance to the Appellant. It may be that it would be proper for the council to produce that for Mr Epstein to consider whether there is something which should be produced. It may be, that there may have to be another application in respect of that if there is a difference of opinion to the Chairman, but not having seen it, I cannot say that that should be disclosed.[11]The two documents which I have said should be disclosed are on the undertaking, which I will ask Mr Sheldon to explain to his clients and to make sure that they understand it, on these undertakings, that neither of the documents is to be used by the Appellant or his advisors save for the purposes of this litigation, that the contents are not to be copied or passed on to any other person, and that the individuals referred to in the report dated 8 February 2002 are to be referred to in this litigation only by the initials or designations given in the document in its redacted form.[12]The inability of the parties to have lodged in advance an appeal bundle of documents has made this hearing more protracted than was necessary. Should any further applications be made, steps should be taken to see that a bundle is submitted so that it can be pre-read. Judge Levy Mr Sheldon, I think you have a copy of the undertakings which I require? Mr Sheldon Sir, I do have those. Judge Levy I would be glad if you could explain to your clients what they mean, tell me that they understand them, and give me their undertakings through you. Mr Sheldon Sir, I will do that. Can I make one suggestion, which I discussed previously with my learned friend, which my clients would be keen to see, if there are peoples names redacted, that we do not know their identity but we know their race? Mr Epstein Yes, I am agreeable, it may not be everybody who is tangenetly mentioned but those against whom allegations are made and where investigations are made, that seems a fair point. Judge Levy Yes, I do not think that makes any difference. Mr Epstein No, but I certainly will pass that on to the council to ensure that that information is provided. Judge Levy Does that affect the order which I am making? Mr Epstein No. Judge Levy Would you also explain to them that if they should break the undertakings it might well be considered contempt of court. Mr Sheldon I will do that now. Mr Epstein I will give an undertaking on behalf of the council…. Mr Sheldon Sir I have explained the undertaking to my client and his advisor and they both understand the importance of these undertakings and the possible consequences if they are in breach. Judge Levy And through you they give them to me? Mr Sheldon Through me they give those undertakings…my learned friend says he is prepared to give an undertaking to the court in respect of giving …designations of individuals concerned. Mr Epstein Sir, before you finally rise, just one small matter, in relation to category one – Mr Sigsworth and the President thought it appropriate not to mention them by name or even initial, would it be possible, if the judgment is finally promulgated, that it does not refer to those indivicuals by name? Judge Levy The judgement will not be transcribed unless there is a request for it. If it is transcribed I will ask that only initials be used for names. So far as the order is concerned, it will be ordered that email from PD be disclosed and the GT investigation report dated 8 February 2002. So, appeal allowed on those terms and on appropriate undertakings.