Appeal No. EAT/360/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 6 May 1994

	Before

	THE HONOURABLE MR JUSTICE MORISON

	MR J D DALY

	MRS M E SUNDERLAND JP

MR N RAFIQ	APPELLANT

DEPARTMENT OF SOCIAL SECURITY	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR S ILLINGWORTH 
(OF COUNSEL)
	Messrs Green Williamson Way
	King Street
	Wakefield
	Yorkshire

For the Respondents	MR M J WILSON
(OF COUNSEL)
	Department of Social Security
	Room 545
	New Court
	48 Carey Street
	London WC2A 2LS

	MR JUSTICE MORISON:  This is an interlocutory appeal relating to discovery in a race discrimination case.  The Appellant, Mr Rafiq, alleges that he was discriminated against by the Department of Social Security when they did not short list him for interview following his application for an administrative post in the Wakefield district of the Benefits Agency.

	The position had been advertised and 682 people applied.  To those applicants the agency say that they applied pre-determined sift criteria and came up with the names of 96 people who were called for interview.  Included within that number were four people who had identified themselves as being from ethnic minorities.  Following interviews the number was reduced to 40 with 3 members from the ethnic minority and from that number 12 were posted of whom one was from the ethnic minority.

	At a Directions Hearing on 11 February 1994 a Chairman of the Industrial Tribunal seised of the matter, made a direction in relation to discovery.  The DSS undertook to make available the "sift criteria" and the application forms, with confidential matters deleted so that their identities could be preserved, of the 12 successful candidates and of all those applicants who had indicated in their application forms that their ethnicity was Indian, Pakistani or Bangladeshi.  

	The DSS complied with their undertaking and the case was listed for hearing on 28 March 1994.  11 days prior to that Mr Rafiq asked for the case to be postponed for the disclosure of further documents.  That application was refused.  When the case was called on Mr Rafiq made a further application for discovery and that too was refused and the case proceeded.  At the end of that day's hearing the matter was fixed for continuation, namely on 12/13 May.  On 21 April, Mr Rafiq faxed the Industrial Tribunal with a further request for documents.  That was refused and on 28 April he lodged with this Employment Appeal Tribunal, a Notice of Appeal.

	What Mr Rafiq wants is for the DSS to disclose the balance of all those applications submitted by applicants who were ultimately successful in obtaining an interview, in other words in addition to the 12 which have already been disclosed, together with those from the ethnic minority groups who were called up for interview but were not subsequently successful, he wants the applications of the balance of the 96 people to whom I have referred.

	It is submitted on Mr Rafiq's behalf that those documents are necessary for the fair disposal of this matter.  It seems to us that the question as to whether it is necessary or not is a matter which can be entrusted to the decision of the Industrial Tribunal who must apply their own judgment to this question.  We have read what they have said.  We see no reason to believe that they have either misdirected themselves in principle or acted perversely in the decision which they have reached.

	Accordingly this Tribunal will be slow to interfere with interlocutory decisions of Industrial Tribunal Chairman.  In addition, I draw attention to the fact that the Tribunal Rules do not require discovery in every case of all documents simply because they are relevant.  It is a question of balance to decide whether disclosure, production or supply is necessary either for disposing fairly of the action or matter or for saving costs.  The balancing act which the Tribunal must carry out is a difficult one but they have the benefit of guidance from other Courts as to how they should carry out that responsibility in relation to discovery in discrimination cases.

	It seems to us that this is a very late application.  It should have been made earlier.  It will have the effect, we are satisfied, if granted, of causing the case to be postponed.  We see no reason for believing that justice cannot be done between the parties as the matter stands at the moment.  That, of course, does not rule out the possibility that during the course of the renewed hearing on 12 and 13 May it may become apparent to the Industrial Tribunal that their original decision needs to be reviewed and altered in the light of the circumstances known to them at that time.  They are not precluded because they have refused to grant Mr Rafiq's applications in the past from reaching a different decision if the circumstances appear to them to require it.  The ultimate test, as I have indicated, is whether disclosure is necessary for the fair disposal of the matter.  They will keep that well in mind throughout the hearing.

	In those circumstances we dismiss the appeal.