ODL SECURITIES LTD v (1) MR P BROOKS (2) MR C BURGESS (3) MR P GERSH (4) MR N LAKING [2007] UKEAT 0285_07_2007

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2007] UKEAT 0285_07_2007

Case No Appeal No. UKEAT/0285/07

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

ODL SECURITIES LTDAPPELLANT

(1) MR P BROOKS (2) MR C BURGESS (3) MR P GERSH (4) MR N LAKINGRESPONDENTS

Before

His Honour Judge Peter Clark

Date 20 June 2007

[1]APPEARANCES For the Appellant MR JAMES LADDIE (of Counsel) Instructed by: Messrs Simmons & Simmons Solicitors City Point One Ropemaker Street London EC2Y 9SS For the Respondent MR PAUL NICHOLLS (of Counsel) Instructed by: Messrs. Payne Hicks Beach Solicitors 10 New Square Lincoln's Inn London WC2A 3QC SUMMARY Practice and Procedure - Disclosure Disclosure / further information sought. Relevance of material /information to issues in case (Constructive s.103A ERA automatically unfair dismissal). Possible P.1.1./ confidentiality claim by relevant authorities. HIS HONOUR JUDGE PETER CLARK This case is presently proceeding in the Stratford Employment Tribunal. The parties are Mr Brooks and three others, Claimants, and ODL Securities Ltd, Respondent. I shall so describe them. There is before me an appeal by the Respondent against an interim order made by a Chairman, Mr M F Haynes, at a case management hearing held on 4 May 2007 refusing the Respondent's application for an order for disclosure of documents, alternatively an order for additional information to be provided by the Claimants as set out at paragraph 7(i) of the Chairman's reasons dated 16 May. Background

[2]By his claim form ET1 Mr Brooks asserted that he together with his co-Claimants formed a team of fixed income traders employed by an associate company of ODL, and that as a result of making certain protected disclosures the Claimants were subjected to conduct by the Respondent entitling them to terminate their employment in circumstances amounting to constructive dismissal. Those resignations took effect on 6 June 2006. It is contended that those dismissals were automatically unfair under s103A of the Employment Rights Act 1996. Compensation for such unfair dismissal if found is unlimited. The total sum claimed by the Claimants is in the order of £8.8m. This is therefore a substantial claim.

[3]Within the particulars given of Mr Brooks' case were allegations that he was threatened by a friend of Mr John Paul Thwaytes, a Director of the Respondent, a man called Ben Cotton. So concerned was the Claimant by these threats, made in May 2006, that he states, paragraph 26 of his claim form particulars, "that he was provided with a uniformed armed police guard". I note that this aspect of the Claimants' case is specifically referred to at paragraph 3.10 of the Claimants' updated List of Issues for a substantive hearing of this contested claim. It is described as an issue going to the question whether the Claimant was constructively dismissed. It is there said 'that the Respondent failed to take grievances and concerns about, among other things, threats seriously or to act appropriately in response'. Mr Laddie has also taken me to passages in Further Particulars provided by the Claimant which indicate to me that the threats also form part of the basis for at least two of the disclosures relied on by the Claimant as protected disclosures.

[4]The original specific request for disclosure was made by the Respondent's solicitors by a letter dated 20 April 2007. They requested of the Claimant all documents in relation to his alleged complaint to the police in relation to alleged harassment and/or threats including any police reports and any details of any of the Claimants being provided with a uniformed armed police guard as pleaded at paragraph 26 of Mr Brooks' particulars of claim. The request specified, without limiting the inquiry, a witness statement made to the police by any of the Claimants, the crime reference number allocated by the police and the address of the police station at which the crime report was made.

[5]The Claimants' solicitors' response on 27 April was that the Claimants had no such documents "but in so far as specific disclosure is sought the Claimants have no objection to this request in so far as it relates to any documents within their custody, care or control which are not privileged from disclosure". Further correspondence ensued but the matter was not resolved between the parties. Hence the issue arose for determination by the Chairman at the case management discussion (CMD) held on 4 May 2007. I have been provided with a note of the relevant part of that discussion prepared by Miss Finn of the Respondent's solicitors with apparently some input from Mr Laddie, who appeared on behalf of the Respondent at that hearing. The note is not agreed by the Claimants who were then represented by their solicitor Mr McRoberts. In one respect, to which I will return, there is a material dispute. In the event it does not seem to me that that dispute requires resolution for the purpose of this appeal for reasons which I shall come to.

[6]The discussion proceeded on the basis that the Respondent's request was by way of disclosure, alternatively a request for additional information. Reading Miss Finn's note I have the distinct impression Mr McRoberts found himself in some discomfort. Miss Finn's note records that he said "We haven't said no documents" but that is challenged by Mr McRoberts in correspondence. Mr McRoberts objected to the release of documents or information because his clients were not at liberty to talk about this or about the police. He said that the discussion was about an on-going investigation and if the Respondent's really wanted to pursue this he would have to stop and could reveal no more. Asked by the Chairman whether his difficulty was as a solicitor or because the police had asked him to keep the matter confidential, he replied delphically that the difficulty was how that affects him. Asked specifically what legal obligation required him not to reveal the details of the police investigation, Mr McRoberts replied that it was a national security issue involving Government agencies and if the Respondent's representative wished to discuss it he preferred to go through the managing partner of his firm. Later Mr McRoberts said that he was willing to suggest that the Claimants could strike through the reference to the armed guard but that suggestion did not satisfy Mr Laddie; and today, Mr Nicholls has made it quite clear that the Claimants' case before the Tribunal at the substantive hearing due to commence on 2 July will involve raising allegations of threats. Those threats, insofar as they are said to be attributable to the Respondent, are denied by the Respondent, are denied by the Respondent. The Chairman's Reasoning

[7]In refusing the Respondent's application for disclosure/further information, the Chairman gave his reasons in writing at paragraph 7(i), as follows "The Chairman, putting aside for the purposes [of] his decision the difficulties referred to, [ that is by Mr McRoberts ] decided that it was not appropriate to make an order for disclosure of these matters. Firstly, they did not relate directly to the issues in the case. The First Claimant [ Mr Brooks ] had not made a protected disclosure about this, nor was it, in itself, probative that any of the Respondents' alleged actions towards him had occurred. It was therefore not relevant or proportionate to order that there should be any such disclosure or that any further information should be given on the matter. Any concerns that the Respondent s have can be raised in cross examination at the hearing. The Appeal

[8]I begin with the Chairman's Reasons. The following questions it seems to me arise.(1) Do the Claimants have documents or information relating to the Respondent's request?

(2) If so, is that material relevant to the issues in the case?

(3) Is it proportionate to make the orders sought? The answers to those questions appear to me to be: (1) Whether or not the Claimant has those documents does not determine whether or not it is appropriate to make the order. On the contrary, it may well be that an order of the Tribunal will concentrate the mind of the Claimant. In any event, this is an alternative application and it seems to me highly unlikely that the Claimant does not know the crime reference number and details of the police station at which he reported the alleged threats in or about June 2006. (2) Yes. The issues as to threats made to Mr Brooks and the Respondent's response to his concerns about those alleged threats feature in the Claimant's form ET1; in the Further & Better Particulars, where they are identified in relation to two of the disclosures relied on; and, specifically, in the Claimant's own List of Issues (paragraph 3.10). (3) Yes. It seems to me that there can be no basis for suggesting that if the material is relevant it is disproportionate to make the orders requested. I accept Mr Laddie's construction of the Chairman's Reasons that the expression "relevant or proportionate" must be taken conjunctively despite the use of the word 'or'. It would not be proportionate to order disclosure or additional information if it were not relevant.

[9]I have in mind the test which must be passed before this Appeal Tribunal can interfere with the undoubted discretion granted to the Employment Tribunal Chairman. The principles are summarised by Wood J in Adams & Rayner v West Sussex County Council

[1999] IRLR 215

, a discovery case, and I should cite a passage referred to in Harvey on Industrial Relations and Employment Law Vol V paragraph T1687 from the Court of Appeal decision in Noorani v Merseyside TEC Ltd

[1999] IRLR 184

. In relation to the limited scope for appeals against the exercise of a Tribunal's discretion in respect of interim decisions the Court said:

"Such decisions are essentially challengeable only on what loosely may be called Wednesbury grounds when a Court at first instance exercised the discretion under a mistake of law or disregarded principle or under a misapprehension as to the facts, where they took into account irrelevant matters or failed to take into account relevant matters or where the conclusion reached was outside the generous ambit within which a reasonable disagreement is possible."

[10]On the critical question of relevance, I am quite satisfied that the Chairman was under a misapprehension as to the way in which the case was being put on behalf of the Respondent. It was not enough in my view to take the narrow line that the question of an armed guard outside the Claimant's home was not relied on directly in relation to any of the issues in the case. The point being made by the Respondent was that there was a material issue as to whether or not the Claimant had been subjected to threats, and in particular threats by the Respondent or its agents. The account which he gave to the police, if a complaint was made may be material when compared with the account given in these proceedings. The question as to whether or not he received an armed guard may again go to the seriousness with which it may be inferred the threats, as reported, were taken by the police. But the short point is, as the Chairman accepted and acknowledged, these were matters which the Respondent had a legitimate interest in raising in cross examination of the Claimant. In order to effectively cross-examine it is right, and the fairness of the hearing requires, that the Respondent has as much material for that purpose by way of disclosure or additional information as it is proper to order. The finding that this was not relevant to the issues in the case, in my judgment, is wholly impermissible to the extent that it offends the Wednesbury principles.

[11]The issue that the Chairman put aside was in my judgment the real issue in this application. It was raised by Mr McRoberts at the hearing below and is pursued by Mr Nicholls on behalf of the Claimant in responding to this appeal. It is whether the information requested was subject to any form of public interest immunity or confidentiality such that the Claimant ought not to be required to disclose either documents or information sought in this application.

[12]Mr Nicholls makes the very fair point that if there is such an immunity or confidentiality it attaches not to the Claimant in these proceedings but to the agencies involved. That is an aspect of the case that has troubled me. I say straight away that apart from that aspect I would have no hesitation in allowing this appeal and exercising my powers under s35(1) of the Employment Tribunals Act 1996 making the order sought by the Respondent. However, there is no representative of any of the interested agencies joined in this appeal nor present to make formal representations.

[13]I should recount in this judgment that a public servant was present in court and on the application of Mr Nicholls, notwithstanding resistance by Mr Laddie, I saw that public servant in private. I do not propose to disclose his identity or anything that I heard from him

[14]. It does seem to me that there should be a form of protection extended to the agencies involved. In these circumstances, I adopt the proposal put forward by Mr Laddie, subject to a small variation suggested by Mr Nicholls. The order I make is that the appeal is allowed. I shall make the order for disclosure and/or further information as sought by Mr Laddie, the precise terms of which may be agreed between Counsel and attached to my order. However, that order will not take effect before 4.00 pm on Monday 25 June 2007. That will allow the relevant authorities to apply on paper marked for my attention to be joined as parties having an interest in this appeal and there will be liberty to any parties whom I join to apply to vary or revoke the order which I have just made. Mr McRoberts, the solicitor for the Claimant, has helpfully undertaken to notify all the relevant authorities known to him of this order and its effect forthwith so that the applications may be made if thought appropriate. Failing any such application, the order will take effect from 4 pm on 25 June. What I shall make clear in the order is that any application to be joined must be made on notice to the parties.