MS N SIVANANDAN v (1) HACKNEY ACTION FOR RACIAL EQUALITY & OTHERS (2) LONDON BOROUGH OF HACKNEY & OTHERS [2004] UKEAT 0472_04_0607

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2004] UKEAT 0472_04_0607

Case No Appeal No. UKEAT/0472/04

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MS N SIVANANDANAPPELLANT

(1) HACKNEY ACTION FOR RACIAL EQUALITY & OTHERS (2) LONDON BOROUGH OF HACKNEY & OTHERSRESPONDENTS

Before

Mr Justice Burton

Date 6 July 2004

[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON For the First Respondents For the Second Respondents No appearance or representation by or on behalf of the Respondents MR S SOOR (of Counsel) Instructed by: Messrs Davenport Lyons Solicitors 1 Old Burlington Street London W1S 3NL SUMMARY Practice and Procedure - Disclosure Employment Tribunal erred in not ordering disclosure pursuant to request (considerably slimmed down during the appeal) for documentation relating to remedy hearing: disclosure of such (slimmed down) documentation, whether or not relevant to liability, was or might be relevant to potential issue of aggravated damages and apportionment, and was not intrinsically inconsistent with the liability findings. THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This has been the hearing of an appeal by Ms Sivanandan against the Decision of Mr Haynes, sitting as Chairman alone at the Employment Tribunal at Stratford, by Reasons handed down on 29 April 2004, to dismiss an application for specific disclosure, sought by her against the London Borough of Hackney, for the purpose of the remedies hearing in which she is seeking to quantify her claim for compensation, in the light of the award in her favour against a number of Respondents, including the London Borough of Hackney, by the Tribunal chaired by Mr Haynes in a Decision handed down on 23 June 2003. I refer to the judgment that I gave, sitting with members, in the consolidated appeals by Ms Sivanandan, relating to the same proceedings, to which appeals the London Borough of Hackney have not any longer been a party, this morning, for a full history of these tangled proceedings. But this appeal, as can be seen, relates only to the consequences of the finding on liability by the Haynes Tribunal, which has not yet quantified its award.

[2]The Haynes Tribunal, as I explained in the judgment in the consolidated appeal, found that the London Borough of Hackney was liable to pay compensation for victimisation, as against the Appellant. The basis upon which it was found liable, and against which the London Borough of Hackney made an unsuccessful appeal to this Appeal Tribunal, which was, as I described in the earlier judgment, dismissed at a preliminary hearing on 18 November 2003, was that Ms Helen White, who was the Eighth Respondent in the Haynes Tribunal, knowingly aided and abetted the victimisation of the Appellant by the other Respondents, within section 33(1) of the Race Relations Act 1976 ; and that the London Borough of Hackney was vicariously liable for the acts of Ms White, as she was acting as their employee and not in a private capacity, as was sought to be alleged. There is to be a remedies hearing and the Appellant has been putting her case together for that purpose.

[3]One of the claims that she seeks to make in that remedies hearing is a claim against the London Borough of Hackney for aggravated damages. She has intimated in the course of this appeal that she is considering an amendment, if such be permissible, whether at this stage or at all, to make a claim for exemplary damages, but I have not considered that case, either as to its merit or substance or in particular in that no such amendment has yet been formulated, never mind granted, and so cannot stand as the basis of any claim for disclosure.

[4]The basis for the disclosure, as put before the Employment Tribunal, was, as I have indicated, as in support of the claim for aggravated damages. In addition, it may have been put (I put it in that way because the Appellant believes that she put it in this way in at least one letter which was before the Employment Tribunal, but Mr Soor, who has appeared on behalf of the London Borough of Hackney, does not seek to take any Kumchyk point to prevent her making the point before me on appeal) or in any event therefore even if it was not so put, on the basis that the discovery may also be relevant on the issue of apportionment. The relevance of that is that, as indicated in my earlier judgment, the London Borough of Hackney will be asserting that it should not be liable for the full amount of any compensation awarded by the Haynes Tribunal at the relevant hearing, and the Appellant will be wishing to submit that in all the circumstances of the case, including any conduct by the London Borough of Hackney, the whole compensation ought, at least in the first instance, to be awarded as against the London Borough of Hackney.

[5]The Appellant also relies on an earlier disclosure order which I should now describe. This was made at a hearing on 30 July 2002 by Mr Lamb, sitting with members at the Stratford Employment Tribunal, for the purpose of the eventual liability hearing before the Haynes Tribunal in this matter. The Appellant had sought, by a request dated 5 December 2001, a quantity of disclosure. Three of those items of disclosure were as follows:

"(ii) all documents relating to "the service level agreement" held between London Borough of Hackney and HARE. (iii) All documents showing the contract for services and the monitoring procedures and returns for monitoring contact compliance between LBH and HARE between 1998 and 2001. (vii) All documents relating to the financial problems of HARE between 1999 and 2001 and notified to LBH."

[6]The order that was made by Mr Lamb, after a hearing on 26 July 2002, by a letter dated 30 July 2002, was related to a considerable number of interlocutory matters and indeed to disclosure that was sought from other parties, but so far as the Appellant's request for disclosure, to which I have referred, is concerned, two of the original eleven items were withdrawn by the Appellant, one was refused and the balance of the eleven, including the three to which I have referred, was granted, both as against the London Borough of Hackney and as against Ms White.

[7]There was a response by the solicitors on behalf of the London Borough of Hackney, dated 6 September 2002, which addressed the various categories of documents that were sought. So far as (ii) is concerned, it was said:

"These documents are held electronically and we would hope to forward these to you early next week"

As far as (iii) is concerned, it said, as stated above:

"The files are unfortunately missing. We will forward recent monitoring information, namely 2000/2001 early next week"

As for (vii) the answer was:

"As stated to you, the files are missing. We would however suggest that you may wish to obtain audited accounts directly from HARE which will detail their financial position."

[8]In the subsequent hearing, dated 10 March 2003, before Mr Lamb, the decision upon which is set out in Reasons sent to the parties on 19 March 2003, the Appellant sought to strike out the Respondent, the London Borough of Hackney, for non-compliance with Mr Lamb's earlier order, and Mr Lamb recorded as follows:

"5 The position can be simply stated. The Respondents accept that there are documents which they have not disclosed. Their explanation is simply that they do not have those documents in their possession. 6 The Tribunal accepts that it is wholly understandable that the Applicant should be deeply suspicious of that contention by the Respondent. However, the Tribunal has no basis upon which to decide in favour of the Applicant that what the Respondents say is untrue. Where such a complaint about non disclosure arises, the normal procedure, and that which will apply in this case, is to put evidence before the Tribunal at the merits hearing to persuade the Tribunal that the claim that documents are not in existence is a false claim. Alternatively, if the Tribunal is satisfied that important documents have existed for some time and have then been disposed of, that is conduct from which an inference might be drawn in favour of the Applicant. 7. The Tribunal therefore refuses the Applicant to strike out on that first basis."

[9]In paragraph 22, under the heading "Further Directions", Mr Lamb recorded that in relation to a separate hearing on remedy issues, if of course that arose: "there would need to be separate disclosure on such issues. The Tribunal decided that the best course was to restrict this hearing to liability issues, and if there is a finding in favour of the Applicant, then the Tribunal will give directions for a separate remedy hearing".

[10]The disclosure that was sought from Mr Haynes, by request dated 31 January 2004, for the purposes of a remedies hearing, as I have indicated, was a very wide ranging one indeed. He sets out the documents sought in paragraph 1 of his decision. "A copy of all quarterly monitoring returns and all documents relating to the LBH/HARE Service Level Agreement from 1 January 1999 until the present day. All financial accounts and returns provided to the LBH by HARE from 1 January 1999 until the present day. All documents including correspondence, regarding HARE finances, including the use of public funds for legal advice and representation from 1 November 1998 until the present day. All documents including correspondence, regarding my ET claim against HARE, (i.e. the Buckley ET) all documents including correspondence regarding the CRE investigation of HARE, from 1 January 2002 to the present day, all documents regarding funding for the HARE case worker, including details of salary and pension from 1 January 1999 until the present day. All documents regarding the closure of HARE. HARE financial accounts for the year ending 31 March 2003." All those, seriatim, were refused by Mr Haynes. It is unclear to me whether any exercise was carried out of going through each of the categories sought, but Mr Haynes refused the entirety of the disclosure sought.

[11]The nub of his refusal appears to have been:(1) a non-acceptance that any of the documents were required for the purpose of establishing aggravated damages; certainly if the issue of apportionment was raised in some letter or other, it was not addressed by him in the Decision.

(2) His concern that what was being sought was to second-guess or to re-run findings which had been made in the Liability Decision.

[12]At the outset of her submissions before me today, Ms Sivanandan realistically recognised that the application which she had made below was far too wide, and in the course of discussion with me, very considerably limited what she is seeking by way of disclosure. The request was too wide in two respects: it did not recognise, adequately or at all, either of the concerns, which, in my judgment, Mr Haynes was correct to have, namely(1) a concern as to whether the discovery was in fact relevant to the issues to be tried at the remedies hearing;

(2) whether they would go wider than, or even second guess, the Liability Decision findings, on the basis of which alone, aggravated damages could go forward, and/or any compensation award be made.

[13]In the end, the application that she pursued before me was limited to the following two categories:(1) a copy of all quarterly monitoring returns, and of all and of any documents containing or evidencing the LBH/HARE service level agreement, between 1 January 1997 and 31 December 1999.

(2) All or any documents evidencing or containing communications between the London Borough of Hackney and HARE and/or Ms White, relating to the Buckley ET proceedings, and/or the County Court proceedings brought by the Appellant against HARE and/or the London Borough of Hackney, between 1 July 1998 and 31 July 1999.

[14]Although, as of course is very often the case in the Employment Tribunal and/or the Employment Appeal Tribunal, such disclosure application has not been supported by affidavit, and consequently much of what has been put in support has come from assertions by the Appellant,. Mr Soor did not specifically take exception to anything that she said, and it appeared to me that I was entitled to rely on the submissions that she made to me, insofar as they did not fully appear from the morass of documents already before me, on the basis of this appeal or this morning's consolidated appeal.

[15]The area of complaint, as found by the Tribunal, was that Ms White, who had been involved in the setting up of HARE from the beginning, as I am informed by the Appellant, acting as agent for the London Borough of Hackney, victimised the Appellant by virtue of her involvement in two interviewing processes. The case that the Appellant wishes to make is that the London Borough of Hackney's involvement as principal in that regard, and/or as vicariously liable for Ms White in particular, should be sanctioned by a finding of aggravated damages by virtue of the knowledge that they or Ms White had at all material times, and consequently the motivation with which they acted.

[16]She submits that it will be important to see from the quarterly monitoring returns, and from the service level agreement, which she believes may have altered from year to year, what, if any, relevant facts or factors were being communicated or disclosed by and between the London Borough of Hackney and HARE and/or Ms White, on the basis that the communications were either, or could either be, direct to Ms White, so far as returns etc were concerned, or seen by her if in the possession of HARE alone. She recognised that so far as her claims for continuing documentation after 1999 is concerned, none of that could be relevant to the issues, which alone the Tribunal must be considering at the remedies hearing.

[17]Mr Soor did not challenge the width or description of the documents now finally slimmed down by the Appellant, which I have described. Indeed, some of the arguments that he had mustered were to meet some of the categories of documents which were not on that basis being pursued by the Appellants. He had one specific point to make, by reference to supporting the Tribunal's decision that what effectively was being done was an attempt to go behind the Liability Decision. Whereas the Appellant relied on the failure by the Respondent to produce the documents pursuant to the order of Mr Lamb as indicating, if anything, conduct upon which she could rely in support of a case for aggravated damages - particularly as she submitted (on information which forms part of that to which I referred earlier, namely not presently being evidenced anywhere) that according to her, the Council's Internal Auditor has seen some or all of the quarterly monitoring returns which are said not to be available - Mr Soor relies on the making of, and non-compliance with, that earlier order for a different purpose. He submits that the very fact that the documents were being sought for the purposes of the Liability hearing means that it is now too late to seek them - or indeed in some instances a wider category, and in some a narrower - again for the purposes of the Remedies hearing. He points, as I have already recounted, to the narrow nature of the finding by the Tribunal against his clients, that is simply of being vicariously liable for the aiding and abetting by Ms White in relation to her participation in the two interviewing processes. He points not only to the terms of the correspondence leading up to and to the orders made in respect of the disclosure in the Liability hearing, which I have already recited, but to the decision by the Haynes Tribunal.

[18]In paragraph 18.10 of the Haynes Tribunal, it said as follows:

"The Applicant may have grounds to suspect the London Borough of Hackney of such ill intentions, especially after the events surrounding the recreation of MARIP, recorded hereafter, but the evidence falls far short of proof. There is no chain of evidence which shows that Ms White had any of these matters in her mind when she attended the interviews. The Applicant asks us to find that the proven animosity of a number of senior officers can also be attributed to Ms White. She suggests that the institutional discrimination existing in the London Borough of Hackney makes this inevitable. This is too broad a leap for us to take. Because there is genuine cause for suspicion we have looked very carefully at the evidence, but, even so, can find not the slightest evidence that Ms White was influenced in any way by the senior officers who had cause to be concerned about the Applicant's activities. In reaching this conclusion, we have considered all of the evidence before us, particularly that of Mr Bhattacherjee, whom we have found entirely credible. "18.11 ….On 21 January 2002 after a lengthy hearing" [before the Central London County Court in relation to a complaint made by the Appellant against the London Borough of Hackney under the Race Relations Act ] "there was a judgment in favour of the Applicant in the sum of £2,500. Unfortunately, as the County Court does not give reasoned decisions, and no transcript of the judgment was available, we can make no detailed findings as the basis upon which this decision was arrived at. Both Ms White and Mr Bhattacherjee gave evidence that they were not aware of these proceedings having been issued, or of the events to which they relate, at the time that the interviews were held. We find this evidence compelling and have decided that neither Ms White nor Mr Bhattacherjee knew of the County Court proceedings or anything about them. In reaching this decision the Tribunal were conscious that whilst neither Ms White nor Mr Bhattacherjee may have been personally involved in the proceedings or other complaints by the Applicant, it is possible that rumour of the Applicant's activities may have reached them as gossip. Both denied that this was so when it was put to them by the Tribunal. After careful consideration the Tribunal was prepared to accept that was the case."

[19]Finally, Mr Soor referred us to part of paragraph 38 in the same Decision namely as follows:

"[Ms White's] conduct was also less favourable to the Applicant. It is difficult for the Tribunal to understand why she should have behaved in this way to the Applicant. There were no personal difficulties between them. Prior to these interviews she had not met the Applicant or had knowledge of her. The only inference that the Tribunal is able to draw is that she was influenced by the general attitude within HARE which was entirely antagonistic to the Applicant. Her explanation was not satisfactory. To questions on the detail of her marking, she repeatedly replied that she no longer had any recollection. She claimed to be handicapped by the lack of her detailed notes, which had been mislaid by HARE. A careful consideration of the evidence lead us to find that these notes had never existed. We had other concerns about her evidence which we have referred to. In those circumstances the Tribunal find that her less favourable treatment of the Applicant was carried out knowingly in the sense that she understood the implications of her marking of the Applicant and intended, as did the other committee members, that the Applicant should not obtain either post."

Mr Soor submits that those are findings of fact by the Tribunal and that what is now sought by way of disclosure is to go behind those findings and seek, once again, to achieve disclosure for the purpose of quantum, which was granted but not complied with, in relation to liability.

[20]I am not persuaded by that argument for the following reasons.(1) It appears to me that those findings are not in fact at all central to the Decision of the Haynes Tribunal. The Haynes Tribunal was deciding the issue of vicarious liability by the Council for the aiding and abetting by Ms White, and it found that Ms White knowingly aided and abetted, in the sense described at paragraph 38. The state of mind of the London Borough of Hackney, and/or of Ms White wider than that, was not a relevant factor for the determination of liability. Mr Lamb had expressly reserved the possibility of further disclosure on the question of quantum, as I have recited by reference to his order of March 2003. The Appellant has pointed out that when he made that latter order, he knew that there had been inadequate compliance with his earlier order. In those circumstances, it appears to me to be quite unjust and unacceptable that an issue which was not necessary to resolve for the purposes of the liability hearing, and in respect of which Mr Lamb both knew that there had been inadequate disclosure and preserved the possibility of further requests for disclosure, should be foreclosed in those circumstances.

(2) Perhaps more significantly, I am not convinced that there has in fact been a relevant finding of fact, certainly an unambiguous finding of fact, by the Haynes Tribunal, in any event. Whereas there was indeed the finding in two paragraphs of a very long and involved Decision by the Haynes Tribunal, namely paragraphs 18.10 and 18.11, which I have quoted, there was also a passage in paragraph 38 of the Decision to which in reply the Appellant took me, and that said as follows:

" She [Ms White] was of course aware from the application forms and from remarks made by the Applicant at the commencement of each interview, that there were other proceedings in place against HARE and against the London Borough of Hackney. Whilst we have found that she was not aware of the proceedings against Hackney, previously, she was certainly aware from that moment onwards."

That suggests therefore that at least in relation to the second interview, she had such knowledge very considerably earlier than the start of the interview. That appears not to sit comfortably with the findings in paragraph 18.10 and 18.11 and to leave open question marks which will need resolving.

[21]I have no difficulty in seeing that the issue which will come before the Remedies hearing, namely as to a claim for aggravated damages, and possibly the issue as to apportionment, will be, and involve, different questions from those which were before the Haynes Tribunal on the issue of liability. In those circumstances, I am satisfied that the slimmed down order for disclosure, which has been sought by the Appellant before me today, should be granted and the appeal will be allowed to that extent, and an order for specific disclosure made, in respect of the two categories of documents, to which I have referred in this judgment.

[22]Mr Soor, the sensible course would be, I have would have thought, to put a timescale on production of those documents, and presumably if the documents are no longer in existence, it would be sensible to follow the High Court procedure of asking there to be a witness statement, indicating, if they are no longer in the possession, custody or power, when they were last in the possession, custody or power, of the Respondent, and the circumstances in which they ceased to be. So I will make that order on this appeal, that within 28 days two categories of documents be produced by the Respondent, and if any documents, falling within either category, are not produced, then there must be a witness statement served within the same timescale, explaining why they had not been produced and indicating when those documents were within the possession, custody or power of the London Borough of Hackney and how they ceased to be in such possession, custody or power, whether by destruction or by transfer to somewhere else.