Appeal No.	 EAT/1165/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 October 1998

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MR L D COWAN
MS S R CORBY

MRS I HICKING	APPELLANT

BASFORD HOME FASHIONS t/a BONFAB	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	Ms S Belgrave
(of Counsel)
Mrs C Hockney
Principal Legal Officer
Equal Opportunities Commission
Overseas House
Quay Street
Manchester M3 3HN	
For the Respondent	Respondent neither present nor represented	

	THE HONOURABLE MR JUSTICE MORISON (PRESIDENT):	This is an interlocutory appeal from the refusal of an Industrial Tribunal to order the employers to provide certain further and better particulars of their IT3 which had been requested and discovery. 

	The grounds on which the Tribunal refused to make the orders requested were that it was unnecessary, irrelevant and would be dealt with under the order for directions which had previously been made.  The order for directions that had previously been made did not provide for any order for discovery, but did provide for an exchange of witness statements, 14 days before the hearing when it was said that a single bundle of documents should be agreed at that time.

	The Applicant has brought complaint of unfair dismissal, unlawful discrimination on grounds of sex and I think a claim also for equal value pay.  The Respondents’ contention is that the Applicant was selected for redundancy at the warehouse where she worked for the reasons set out in their IT3, and although she had not been given any advanced warning of impending redundancy prior to first being informed about the position, the dismissal was, they contend, nonetheless fair and they went on to say that whilst they accepted there was insufficient notice or consultation about the redundancy, it was part of a genuine downsizing exercise and, and I quote:

“..... all efforts had been made to seek alternative employment.  Certainly the Applicant’s gender had nothing to do with the decision to make her redundant.”

	The Applicant through her advisers, had written to the Respondents seeking the further and better particulars in question, and it was as a result of their refusal that they then applied to the Tribunal for an order in respect of them.  We will deal with the further and better particulars first.

	We have been assisted on the Appellant’s behalf by the submissions of Miss Belgrave to whom we are grateful; the Respondents as is their right, have not attended. They have not advanced any positive submissions on this appeal, but we have taken care in each case to have regard to the reasons they advanced in their letter which was sent to the Industrial Tribunal dated 6 August 1998 setting out why it was that they said that there was no need for any order.

	The first request for further and better particulars in relation to this appeal is (1) please state the number of redundancies that took place at Darvel.  There are two scenes of operation operated by the Respondents employers in this case, the Applicant was employed at one and Darvel in Scotland was the other.  The Respondents’ position on this is that redundancies at Darvel are not relevant to the issues in the proceedings.  It seems to us having regard to the terms of their IT3, in particular the third paragraph and the eighth paragraph, that it is not sustainable that the number of redundancies that took place at Darvel is irrelevant.  Indeed we think that they are relevant to the issues in the action and may well be of importance.

	Accordingly, we cannot understand how the Industrial Tribunal Chairman concluded, if he or she did, that it was a request which was unnecessary or irrelevant or would be dealt with by the witness statements.

	It may or may not be dealt with by the witness statements, but it seems to us that in advancing her case, she is entitled to know before she makes her witness statements what the position is in accordance with the Respondents contentions.

	The test that we must apply in relation to the further and better particulars, is set out in Byrne v Financial Times Limited [1991] IRLR 417 namely, 

“(a)	that the parties should not be taken by surprise at the last minutes;
(b)	particulars should only be ordered when necessary to do justice in the case;
(c)	to prevent adjournment;
(d)	the order should not be oppressive; and
(e)	the particulars are for the purpose of identifying the issues.”

so as to avoid trial by ambush.  It seems to us that whilst the exchange of witness statements goes some way to avoiding the risk of trial by ambush, there are cases and this is one of them where the  delivery of further and better particulars is also required for the doing of justice between the parties and enable the case to be efficiently and effectively managed, so as to reduce the hearing time in the Industrial Tribunal.  Accordingly, we are satisfied that the first request falls well within the principal.

	The second request relates to the name, job title, lengths of service, and sex of any other employee dismissed at the Respondent company’s Heanor site by way of redundancy, that being the site where she was employed.  It seems to us that that is a perfectly reasonable request to have been made.  It is significant that the Respondents have not dealt with that request in that letter of 6 August 1998, and again we cannot understand on what basis the learned Chairman took the view that it was either unnecessary or irrelevant, or would be dealt with in the witness statements.  It might or might not be.

	The third request asked for a description of the procedure the company followed in implementing the redundancies at Heanor and Darvel.  Again, this is not dealt with expressly in the letter from the Respondents dated 6 August 1998.  It seems to us that this is again in the context of a sex discrimination act case and an unfair dismissal case to be a perfectly fair and unoppressive question to ask, and again we have to say, we cannot understand how the Chairman could have concluded that request was irrelevant or unnecessary.

	The next request asked the Respondents to specify the job titles of all those who have been dismissed at Heanor and Darvel.  That seems to us to be a partial duplication of the second question.  We are prepared to make an order in these terms: please specify the job titles of all those who have been dismissed as redundant at Darvel from the beginning of 1998.  In that form, that request is manifestly justified, we cannot understand how the Industrial Tribunal concluded that it was irrelevant or unnecessary if it was relevant and necessary as we think it is, then the Tribunal could well have made the order in the form in which we suggest it should be made.  

	The next request was to please specify the selection criteria used to select employees for redundancy.  Again, this is obviously a relevant and necessary matter and should have been ordered.  It is not sufficient simply to await the exchange of witness statements in this case.

	The final request is for an account of the efforts which the Respondents say they made to seek alternative employment for this Applicant.  The request is to state the efforts made to find her alternative employment, who was responsible and the manner and extent of the enquiries made.  The Respondents’ answer to that was that they were requesting evidence and that is not the purpose of further and better particulars and it is a sufficient plea to say that the company had considered alternative employment without giving any particulars.  We do not agree, it seems to us to make it possible for a fair trial of these proceedings, it would be sensible for the employers to provide this information in advance, so that the parties know where they stand and can prepare their witness statements on that basis.

	Accordingly, we allow the appeal in relation to the refusal to give further and better particulars.  It seems to us entirely consistent with the new approach to litigation, that parties should approach their cases on the basis of their cards face up on the table, rather than the other way round.  Therefore, we turn to the question of discovery, the principles again are clear; it seems to us that discovery will only be ordered where this is necessary for the fair disposal of the case or for saving costs.  It is not sufficient if the documents are merely relevant.  We have already noted that there was no order for discovery in this case.  We think there should have been.

	The first matter in issue before us, is headed “The list of all warehouse operatives as at 10 April 1998”.  What is meant by that is the list of all warehouse operatives at Heanor and Darvel as at 10 April 1998 and in that form, we are prepared to make the order.  We should say that discovery is of documents, it is not a process under which a party is required to create a document and it occurred to us during the course of argument that this request could happily have been put into a request for further and particulars, but we see no reason to believe that the employers will not have readily to hand a list of all warehouse operatives at those two places as at the 10 April 1998.  Indeed they have indicated that such documents will be contained in the bundle of documents which is to be exchanged and therefore we are happy to deal with it exceptionally under the heading of discovery.

	The next request was for all notes, minutes and a round up of all meetings at which the downsizing of the company was discussed.  It seems to us that that is not a request which is properly formulated, but we are prepared to order discovery of notes and minutes of all meetings at which the prospective redundancies were discussed.  That seems to us to be fair.  The employers say those documents are not relevant to the issue as to the fairness of the Applicant’s  dismissal, we think that they are and obviously are.

	The next one is copies of the selection criteria used and copies of the scores the Applicant received.  What is being sought is discovery by a list of, and we re-phrase, “documents containing the selection criteria used and the Applicant’s markings”.  That will be sufficient and make it plain to the Respondents precisely what documentation will have to be contained in the list.

	That leaves the final request for discovery, for which we are concerned, namely, copies of the Applicant’s personnel records, again we think that what is being required to be disclosed by a list is the Applicant’s record and that should be contained within the list with inspection to follow in the normal way. 

	Accordingly, we make an order for the further and better particulars in the form in which I have indicated and we make an order for discovery by a list of the documents which I have identified.  I will now hear Counsel on the question of the timing for the compliance of those orders.  I would say that the further and better particulars are to be provided by the 6 November to the Applicant’s advisors by close of business on 6 November and that the discovery by a list is to be provided by the same date and attached to that order will have to be the usual penalty notice, which Industrial Tribunal’s attach to their orders for discovery and which it would be appropriate since we are exercising their powers to add to our order.