Appeal No. UKEAT/0528/08/JOJ

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 4 June 2009

Before
HIS HONOUR JUDGE PETER CLARK
(SITTING ALONE)

GMB UNION & OTHERS	APPELLANT

(1) MR A HUGHES
(2) MR M BEAUMONT
(3) MR P F HOGGARTH	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR JOHN BENSON
(One of Her Majesty’s Counsel)
Instructed by:
EAD Solicitors
Prospect House 
Columbus Quay
Liverpool
Lancashire, L3 4DB	
For the Respondents	MR KASHIF ALI
(of Counsel)
Appearing under the aegis of the Bar Pro Bono Unit

SUMMARY
PRACTICE AND PROCEDURE:  Case management
Specific disclosure orders made at CMD attached on grounds of relevance, proportionality and confidentiality.  No error of law in Employment Judge’s approach to the first two grounds; the third was, on balance, not argued below and was not permitted for the first time on appeal, applying the Kumchyk line of authorities (no exceptional circumstances  shown).

HIS HONOUR JUDGE PETER CLARK
1.	In these combined proceedings in the Manchester Employment Tribunal the Claimants are Messrs Hughes, Beaumont and Hoggarth and the Respondent is their former employer, the GMB Union.  This appeal concerns certain case management orders made by Employment Judge Slater at a Case Management Discussion (CMD) held on 13 August 2008 affecting the case of Mr Paul Hoggarth only.

Background
2.	For present purposes the relevant history is as follows.  Mr Hoggarth was a long-serving employee of the Union, that employment having commenced on 1 April 1981.  He was a Senior Organiser in the North-West Region.

3.	Mr Hoggarth was a named Respondent in Employment Tribunal proceedings brought by an employee of the Union, Maxine Nixon.  In July 2005 a Tribunal upheld Ms Nixon’s complaint of sex discrimination against, amongst others, Mr Hoggarth.  He was suspended from work on 15 July 2005 and a disciplinary hearing, arising from his part in the Nixon episode, was held on 14 December 2005.  He asserts in his claim form ET1 that he was demoted, his pay was reduced and he received a final warning.  He then remained effectively suspended and on about 9 January 2006 was admitted to hospital with a stress reaction.  He remained unfit for work and on 31 January 2007 a capability meeting was convened by the Regional Secretary, Paul McCarthy, at which the Claimant was present and represented by Frank Minal, a GMB Organiser.

4.	By that stage the Union had seen medical reports from a Clinical Psychologist, Dr Higson, and from a Dr El-Assra.  Both doctors apparently took the view that Mr Hoggarth was suffering from a psychiatric condition which was unlikely to improve until continuing issues with the Union were resolved.  These included a claim by the Union to recover solicitors’ fees incurred in defending Mr Hoggarth and others in the Nixon proceedings.  That claim was later dismissed by HHJ Holman sitting in the Manchester County Court on 11 January 2008.

5.	It appears from notes of the 31 January meeting taken on the Union side, and placed before me, that Mr Minal accepted that it was extremely unlikely that Mr Hoggarth would return to his employment with the Union.  Discussion turned to possible severance terms, including ill-health retirement and the benefits which I infer come with that outcome.  Proposals for an overall severance package were put to Mr McCarthy by Mr Minal in a letter dated 6 February, but Mr McCarthy decided to dismiss Mr Hoggarth on grounds of ill-health capability on 16 February 2007.

6.	Following that termination Mr Hoggarth presented his form ET1 on 30 March 2007, complaining of unfair dismissal and sex and disability discrimination.  As to the complaint of unfair dismissal, he contends that the real reason for his dismissal was not capability but his part in the Nixon litigation.  But for that, he contends, he would have been dealt with by way of ill-health retirement, not capability dismissal.  Further, he alleges that in dismissing him on grounds of capability, rather than retiring him on ill-health grounds, Mr McCarthy took a step which is unprecedented in the Union.  He also points out that the four individually named Respondents in the Nixon litigation, including himself and his two co-Claimants, Messrs Hughes and Beaumont, have all been dismissed by the Union.

7.	For its part, the Union asserts that the reason for Mr Hoggarth’s dismissal was capability, following sickness of more than one year there was no probability of his ever returning to work; dismissal for that reason was fair.  In their form ET3 they say in terms, 

“The case relating to Maxine Nixon was not relevant to (Mr Hoggarth’s) dismissal and apart from raising this as an allegation (he) has advanced no grounds or evidence to support his view.”

The Procedural Orders
8.	The procedural history of this case has been protracted.  I do not find it necessary to set it out.  Suffice it to say that at the CMD held before Judge Slater on 13 August 2008 she made, amongst others, two orders which are now challenged in this appeal.  They are, using the Judge’s numbering, as follows, 

“11.	By 11 September 2008 the respondent shall provide the claimants with a list of all officers of the GMB by region and head office who have received in excess of one year’s sick pay and the nature of their illness and a list of all officers of the GMB by region and head office who have been afforded ill health retirement and the nature of their illness.
12.	By 11 September 2008 the respondent shall provide the claimants with a list of all GMB officers by region who have had their case for dismissal referred to the Regional Committee by the Regional Secretary and a list of all officers by region who have been allowed to appeal to the CEC against dismissal.”

9.	The Judge’s reasons for making those two orders appear at paragraphs 10 to 13 of her reasons.  I need not repeat them in this judgment.  Suffice it to say that she found that the orders sought were relevant to the reason for the Claimant’s dismissal and, as to the question of proportionality, formed the view that the information requested was not likely to be of a very extensive nature for the reasons set out at paragraph 13.

10.	Following the Judge’s Orders and Reasons promulgated on 21 August the Union’s solicitors applied for a review of orders 11 and 12 (the relevant orders).  The Judge responded on 2 September 2008 pointing out correctly that the relevant orders were not capable of review under the Rules, but considered whether she should vary the orders as provided for in Rule 10(2)(n) of the 2004 Employment Tribunal Rules.

11.	She recognised that the relevant orders ought to have been time limited and varied paragraph 11 to include information over a period of three years ending with Mr Hoggarth’s dismissal on 16 February 2007 and paragraph 12 by limiting the period to five years up to the date of dismissal.

The Appeal
12.	In advancing this appeal Mr Benson QC acknowledges the limits on the EAT’s powers to interfere with the case management orders of the Employment Tribunal, involving, as they do, the exercise of a wide discretion.  I accept that the principles outlined by Wood P in Adams and Raynor v West Sussex County Council [1990] IRLR 215 paragraph 16, are engaged in considering the present appeal,

“(a) Is the order made within the powers given to the tribunal? The short answer is yes; the power to order a party to provide written information derived from documentary records is specifically sanctioned by Rule 10(2)(d);
(b) Has the ET discretion been exercised within guiding legal principles, e.g. as to confidential documents in discovery issues?
(c) Can the exercise of the discretion be attached on Wednesbury principles, i.e. has the Judge taken into account irrelevant factors, failed to take into account relevant factors or otherwise reached a conclusion which no reasonable Employment Judge properly directing herself could reach (perversity).”

It is not for me to consider the issue de novo.

13.	In that context Mr Benson submits that the relevant orders are perverse by reference to relevance, proportionality and confidentiality.

Relevance
14.	As to the paragraph 11 order I am satisfied that the Judge was entitled to conclude that information as to the treatment of other union officers who had been off sick for more than one year over the preceding three-year period, and any instances of ill health retirement amongst that class of officers, is relevant (a) to the Claimant’s case that the real reason for his dismissal was his part in the Nixon episode and not ill health capability simpliciter and (b) to the question of reasonableness if the Union makes out its potentially fair reason for dismissal.  I accept the need for truly comparable circumstances to be made out in the context of unfair dismissal (see Paul v East Surrey District Health Authority [1995] IRLR 305).  However, the Claimant will not be in a position to make out that case without access to the basic information ordered.  In these circumstances it is unnecessary to consider the relevance of the material to the Sex Discrimination Act victimisation claim, as submitted by Mr Ali.

15.	As to the paragraph 12 order, Mr Ali has persuaded me that the information there ordered is relevant to an issue in the unfair dismissal case, namely whether the Regional Secretary had power under the Union rules to dismiss the Claimant, on grounds of ill-health capability instead of referring the case to the Regional Committee under Rule 17(F), and whether the Claimant ought to have been given a right of appeal to the governing CEC (Central Executive Committee).

Proportionality
16.	The Judge formed the view that the exercise required of the Union in respect of orders 11 and 12 was not unduly onerous.  Mr Benson contends that it was impossible for the Judge to assess the extent of the task and the Union had not embarked on it prior to an order being made.  I reject that submission.  The Judge was left to form a view as to the size of the task without any assistance from the Union as to what might be involved.  In these circumstances I am satisfied that the Judge reached a permissible conclusion as to whether the order was proportionate to the issues involved.

Confidentiality
17.	I accept Mr Benson’s general proposition that a degree of confidentiality necessarily applies to the medical details of officers who may fall within the categories identified in paragraph 11 of the order.  The difficulty he has is that he is unable to tell me on instructions that this was a point raised on behalf of the Union by Junior Counsel then instructed at the 13 August CMD.  Mr Ali, who was present on that occasion, has no recollection of the point being taken, although it had evidently been raised by the Union solicitor, Mr Pinder, in correspondence both before and immediately after that hearing.

18.	The Judge does not mention the issue of confidentiality in her reasons.  In these circumstances I infer that it is not a point which was advanced at the hearing despite having been flagged up by the same Employment Judge in her letter to the parties dated 20 May 2008.  Accordingly, I see no exceptional circumstances which would cause me to allow Mr Benson to advance this new point for the first time on appeal.

Conclusion
19.	Having considered the various ways in which this appeal is put, I am not persuaded that any error of law is made out in the exercise of Judge’s discretion.  These were case management orders which she was entitled to make in the particular circumstances of this case, with which she was plainly familiar from having case managed it on a number of occasions.  Accordingly this appeal fails and is dismissed.  The orders at paragraphs 11 and 12 shall be complied with within 21 days of the seal date of my order.