Appeal No. EAT/0148/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 April 2000

Before
MR JUSTICE LINDSAY PRESIDENT
MR LAMBERT
MR VICKERS

MRS C AJAYI	APPELLANT

1.	HAMMERSMITH & FULHAM COUNCIL FOR RACIAL EQUALITY
2.	MR R TIMMERMAN	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	In Person	
For the 1st  Respondent

For 2nd and 3rd Respondent	MR R BRONKHURST
(Representative)
INTERCHANGE LEGAL 
ADVISORY SERVICE
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Dalby Street
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In Person	

MR JUSTICE LINDSAY (PRESIDENT) 

1	We have before us an interlocutory appeal by Mrs Christine Ajayi, in the matter Ajayi –v- Hammersmith & Fulham Council for Racial Equality , 1st Respondent Mr Timmerman, 2nd Respondent and Mr Kadoo 3rd Respondent.  Mrs Ajayi is in person before us, as are Mr Timmerman and Mr Kadoo.  The first Respondent, Hammersmith & Fulham Council for Racial Equality, appears by their Representative Mr Bronkhurst.

2	The Application concerns the refusal of the Employment Tribunal to make an order for discovery in Mrs Ajayi’s favour.  It is necessary, in order to understand the case, to have some grasp of the procedural background, which is not uncomplicated.  

3	On 17 December 1998 - that long ago - Mrs Ajayi launched an IT1 against three Respondents, first, Hammersmith & Fulham Council for Racial Equality, second, Mr Timmerman and thirdly, Mr Kadoo.  It was ascribed the number 365/98.  In that IT1 Mrs Ajayi complained of action short of dismissal, gender discrimination, harassment, bullying, intimidation and breach of contract.

4	On 18 December 1998 a County Court Order was made, presumably in a civil case between Ajayi and Timmerman and Kadoo.  The Order was made at West London County Court by H.H.Judge Cotran and the order was that Mr Timmerman and Mr Kadoo were forbidden (whether by themselves or instructing or encouraging any other person) from unconstitutionally and illegally forcing Mrs Ajayi out of her position and office as the permanent director of Hammersmith & Fulham Council for Racial Equality.  “This order” (it continued) “shall remain in force until it is revoked by the further order of the court.”  Liberty was given to the Defendants to apply to vary or discharge the order.  It looks as if the Council itself was not a party to those proceedings and the order was granted ex parte.

5	On 26 January 1999 Hammersmith & Fulham Council for Racial Equality entered its IT3 in answer to that first IT1 of Mrs Ajayi.  They said that they were not responsible for the suspension of Mrs Ajayi and it had been set aside.  Mrs Ajayi had a “grievance” that was to be continued.

6	On 23 March 1999 Mrs Ajayi lodged a second IT1, this time claiming victimisation and other claims against Hammersmith & Fulham Council for Racial Equality and Mr Timmerman.  Mr Kadoo seems to have dropped out this time; that IT1 was ascribed a number the last figures of which were 729/99.

7	On 4 April 1999, Hammersmith & Fulham Council for Racial Equality put in its IT3 to that second IT1 and again rather took the line that it was not Hammersmith & Fulham that was responsible for what had happened but Mr Timmerman.

8	On 22 June 1999, in yet other County Court proceedings in West London County Court an order was made H.H.Judge Cowell.  The parties to those proceedings were Christine Ajayi as Applicant and Mr Mulat Haregot, acting Chairperson, and Hammersmith & Fulham Council for Racial Equality.  The Application was presumably ex parte and the order was directed to Mr Haregot and that Hammersmith & Fulham Council for Racial Equality, who were the Respondents to which it was addressed, and the order said “It is ordered that
1.	Upon the claimant attending outside room 209 on Wednesday 23 June 1999 at 10.am or such other times as may be agreed, the claimant be permitted to take all her documents and be given copies of all the Defendants documents relevant to the hearing of the claimants application to the Industrial Tribunal 
2.	In the event of dispute whether any document is relevant to or privileged for production of the said hearing the Defendant do take such documents to the Tribunal hearing in the absence of agreement otherwise.

9	On 29 July 1999 Mrs Ajayi launched her third IT1 for constructive dismissal.  This was given a number which ended 667/99.  This time the parties were as, first Respondent, Hammersmith & Fulham Council for Racial Equality, second, Mr Mulat Haregot and, thirdly, Mr Fetuwi.  The unfair dismissal, which was alleged to have been by way of constructive dismissal, was said to have occurred on 30 June 1999.  Mrs Ajayi also asked that the proceedings, that is to say her three separate IT1s - should be consolidated.

10	On 30 July, we are told, there was an application by Hammersmith & Fulham Council for Racial Equality to amend its IT3 in the first case, the one which had begun in December 1998; they wanted to amend their IT3 of January 1999.  We have been handed this morning the front page of an application but what the order was and what the complete form eventually agreed was is quite unclear but there was, it seems, an application to amend that was granted to some extent, if not completely.

11	On 26 August 1999 the Hammersmith & Fulham Council for Racial Equality body entered an IT3 to the IT1 number 667/99, asking for a preliminary hearing as to whether there was indeed a constructive dismissal.  On 16 September 1999 Mr Timmerman put in his IT3 to the second IT1, namely 729/99.  Then on 6 October (we are getting now into more material country) there was a long request for discovery by Mrs Ajayi, related to all three of the IT1’s which she had lodged.  It is headed in a way that includes each of the numbers to which I have referred.

12	On 26 November 1999 there was a hearing before the Employment Tribunal, Mr Flint sitting alone as Chairman, for directions which dealt principally with the subject of discovery and dealt with the lengthy request by Mrs Ajayi for discovery.  We have not got anything by way of a formal document in relation to that application for discovery, but we do have a letter on the subject (inconveniently not fully dated, it merely says December 1999).  It was addressed by the Tribunal to Mrs Ajayi also to Mr Bronkhurst and to a party just described as Abayomi.  It is not the clearest of documents, as an order on which to base an appeal but we are told that was what the parties got and that was all that they got.  In paragraph 2 this is what it said: -

“The principal reason for calling this hearing for directions was to consider the question of the Applicant’s lengthy request for discovery.  The Applicant asserted that all these documents are necessary for fairly disposing of the claim, as they would show how the Respondent had behaved towards her over a period of time.  Except for numbers 8 and 10, this application was opposed by Mr Bronkhurst who appeared for the Council.  He said that none of these documents with a possible exception of numbers 8 and 10 could possibly be necessary for fairly disposing of the proceedings between the parties.  The Chairman agreed with Mr Bronkhurst.  In his opinion this voluminous request for a very large number of documents relating to all the activities of the Council over a period of years could not possibly be necessary for fairly disposing of the claims which had been brought by the Applicant.  He declined to order any of these documents to be supplied except those contained in items 8 and 10.”

13	On 26 January a Notice of Appeal was received by the Employment Appeals Tribunal.  It might be that the correct date is 2 February, which is actually the date as stamped as received, and that document appeals against the declining of a broader order for discovery.  Mrs Ajayi presumably succeeded so far as concerned items 8 and 10 and there is no suggestion that they have not been supplied but she wished to have a much broader order for discovery, one more akin to her very substantial request.  

14	We have heard Mrs Ajayi in person today.  She has drawn our attention to a number of authorities Clwyd County Council –v- Leverton, Nasse –v- Science Research Council, Vyas –v- Leyland Cars, The British Library –v- Palyza and Mukherjee, Commissioner of Police of the Metropolis –v- Locker, and The West Midlands Passenger Transport Executive –v- Singh case.  There may be others, we have skated over some rather than having been taken to them in any depth.

15	She makes a point that it is a matter of public interest that the fullest information should be before a Tribunal.  Well, of course, that is correct, but the fullest information, nonetheless, has to be relevant and if it is to be the matter of an order of discovery, it has to be necessary for fairly disposing of the proceedings.  One cannot simply say the fullest information is necessary and use that as a peg on which to hang a request for documents which are neither necessary for the fair disposal of the case nor relevant to the issues in the case.

16	She raises an argument about the need for the Chairman of the Employment Appeals Tribunal to comply with the order of the County Court.  This, as it seems to us, is a misunderstanding.  The county court order is, of course, not addressed to the Employment Appeals Tribunal; it is addressed to the Respondents to the application, Mr Haregot and Hammersmith & Fulham Council for Racial Equality.  Moreover, we do not know anything of the proceedings in which it was issued.  It relates to something that was required to be done on 23 June 1999; we have no evidence as to what was done or not done on that day.  There is no question that can possibly arise over the Employment Tribunal being said not to have obeyed the order of the West London County Court.  That represents a misunderstanding of the position.  If Mrs Ajayi wishes to complain that someone or other has not complied with that order, well then, the Court in which that complaint has to be made is the West London County Court.
17	An important point made by Mrs Ajayi, basing herself on West Midland Passenger Transport Executive –v- Singh (1988) ICR 614, is that in racial discrimination cases discovery plays a particularly important part and equally, in sex discrimination cases because, as is acknowledged in the well known King –v- British China Centre case, racial or sexual discrimination is not the sort of thing that people admit; they would prefer to hide it and one very seldom sees any admission.  The courts or Tribunals looking into such matters are particularly driven to see what are the proper inferences from the surrounding circumstances and the onus is always upon the Applicant in such cases; it is a burden that has to be borne in mind when discovery and requests for discovery are in play.  Nonetheless, the test ultimately for whether a document is discovered or not is the same in gender discrimination or sex discrimination cases as in others and one has to ask about relevance of the papers, whether it is oppressive or not to require them to be discovered and, in particular, whether they are necessary for fairly disposing of the proceedings.  That there is a rule permitting discovery in Employment Tribunal cases, is of course, beyond doubt.  It is rule 4 (1)(b) of the Employment Tribunal Regulations and it reads: -

“The Employment Tribunal may [but no one notices the word “may”, which is a classic introduction to a matter of discretion] on the application of a party, made either by notice to the Secretary or at the hearing of the Originating Application or of its own motion-
(a)	………………
(b)	require one party to grant to another such discovery or inspection (including the taking of copies) of documents as might be granted by a county court.”

18	It is manifestly a discretion.

19	 Now we turn to the particular circumstances of this case.  There was no formal application for discovery made to the Tribunal but there was a full letter of the 6 October which Mrs Ajayi wrote as a request in, as we mentioned, all three cases together.  That, it seems, must be taken to be the request that was ruled upon by the Chairman.

20	It seems to us that it is manifest that a number of the requests were hopelessly irrelevant, not to say perhaps even oppressive, given the nature of the IT1s which Mrs Ajayi had lodged and in the nature of the IT3’s which had been entered as a matter of response.  The request had twenty five different headings.  To give examples of what were requested, they included the Hammersmith & Fulham Council for Racial Equality bank statements from 1995 up to the end of June 1999, for both current and business reserve accounts, copies of audited accounts from 1995 to the most recent draft audited accounts, including every letter and report from the Auditor, correspondence between Hammersmith & Fulham Council for Racial Equality and Hammersmith CRE Executive for the past three years, correspondence with the Auditor regarding audit and the state of HFCRE accounts for the past four years including and up until the end of June 1999, the whole of Mrs Ajayi’s personnel file, the membership forms of all the executive committee members from 1996 to June 1999 which would contain their separate biographies and information, and audited accounts from 1995, 1996, 1997, 1998, 1999 and June 1999.  These are just examples but they do seem to represent a request for documents hopelessly beyond the bounds of what was relevant and what was necessary for the fair disposal of the case.  It is hardly surprising that so broad a request met with a degree of hostility, first from Mr Bronkhurst (then appearing, as he does now, for Hammersmith & Fulham Council for Racial Equality) and also from the Chairman.  

21	We have not been addressed as to the separate relevance of the various categories which were declined to be subjects of an order for discovery.  We have seen no evidence that was led before the hearing below to justify the relevance and necessity of any particular categories, as it seems, there was none.  If one asks, as we are bound to ask, given that we are examining the discretion on the part of the Chairman, what error of law is identified by Mrs Ajayi in her appeal to us, we have enormous difficulty.  Mr Bronkhurst categorises her attack as being simply an attack on the basis that she disagrees with the judgment below and there is, indeed, force in that, but looking at the broad categories of documents which she asked for, we need to ask ourselves whether can we be sure that there was an error of law in declining an order for discovery of those categories.  We have not been assisted by Mrs Ajayi in identifying for us any error of law.  As we have mentioned, the failure, as she claimed it to be, to comply with the county court order represents a misunderstanding.  If she wishes to complain that that order has not been properly performed then the proper forum for that is the county court.  

22	She does complain that Mr Flint as Chairman, in the particular hearing in which discovery was sought in November 1999 and, as we have understood it, in other hearings, has exhibited some degree of bias and prejudice against her.  Now the practice direction on this subject is quite clear; it is that if it is to be part of an Appellant’s case that the panel below, be it a panel of one or a panel of three, exhibited bias or prejudice or otherwise misconducted itself, the complainant has to swear an affidavit giving chapter and verse of precisely what the allegations are.  The object of the exercise then being that the Chairman or the Lay Members or both can then be approached for their comments in relation to that particular allegation.  There is here no affidavit in respect of allegations of bias on the part of the Chairman and we cannot pay attention, in that case, to a complaint which the Chairman has had no opportunity of answering.  Mrs Ajayi does ask, amongst other heads of relief, that the matter shall not proceed before Mr Flint.  

23	Mr Flint, of course, might or might not be amongst the panel of three that will hear the substantive case.  The very fact that he has had the conduct of a number of interlocutory hearings does not mean that he will necessarily be on the panel of the substantive hearing, when the Chairman will sit with two other members.  We would not wish this to be thought in any way a point critical of Mr Flint but, simply in order to avoid a possible future difficulty which, as it seems to us, could so easily be avoided, it would, in our view, be wise that Mr Flint should not be on the panel of three that hears the substantive case, which should, as it seems to us, now proceed with all reasonable speed.  We emphasise that that is not any adverse reflection on Mr Flint but simply represents the taking of the practical line that why should one allow possible conflicts to arise when they can so easily be avoided.  

24	To that limited extent Mrs Ajayi succeeds on her application before us, but on the principal matter of discovery, even bearing in mind the particular features of discrimination cases to which she has drawn our attention, we do not feel able to identify any error of law in the Chairman’s response.  

25	Accordingly, with the minor exception that we have mentioned, we dismiss the appeal.