Appeal No.	 EAT/324/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 March 1998

Before
HIS HONOUR JUDGE PETER CLARK
MR R JACKSON
MRS J M MATTHIAS

MRS A J BARI	APPELLANT

LONDON BOROUGH OF WALTHAM FOREST	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR BARI
(Husband)	
For the Respondents	MR NOAH WEINIGER
(of Counsel)
Instructed by:
The Director of Legal Services
London Borough of Waltham Forest
PO Box 6937
Sycamore House
Town Hall Complex
Forest Road
Walthamstow
London 
E17 4UL	

	JUDGE PETER CLARK:	The appellant, Mrs Bari, was employed by the respondent as a social work assistant from 18th July 1988 until 30th June 1996. Following termination of that employment by the respondent she presented a complaint of unfair dismissal/wrongful dismissal; unlawful deduction from wages; breach of contract and pension rights to an Industrial Tribunal on 27th September 1996. She is represented in those proceedings before the Stratford Industrial Tribunal by her husband, Mr A J Bari.

	A directions hearing was held before a Chairman sitting alone on 5th January 1998. It is against certain orders not made by the Chairman and others which were made and which are contained in a letter to the parties dated 13th January 1998 that this interlocutory appeal is made. In addition, Mr Bari has sought leave to amend the Notice of Appeal dated 19th February 1998 in order to add further grounds of appeal, and further wishes to appeal against an order of the Industrial Tribunal dated 4th March, refusing to set aside an order for further and better particulars of the Originating Application made by letter dated 16th February. Mr Weiniger, for the respondent, does not oppose those applications, indeed, quite sensibly if we may say so, he is anxious that all matters of complaint raised on behalf of the appellant today should be dealt with. We shall do so.

	Mr Bari has applied unsuccessfully by letter dated 22nd January 1998 for written reasons for the Chairman’s order following 5th January hearing. We have, on previous occasions, drawn attention to the tension between the Employment Appeal Tribunal Rule and the Industrial Tribunal Rules of Procedure; rule 3(1)(c) of the Employment Appeal Tribunal Rules requires an appellant to serve with the Notice of Appeal a copy of the extended written reasons for the decision or order of the tribunal appealed against; rule 10(4) of the Industrial Tribunal Rules only requires the tribunal to provide written reasons for its decisions; the definition of decision to be found in Regulation 2(2) of the Industrial Tribunal (Constitution and Rules Of Procedure) Regulations 1993 does not include an interlocutory order for discovery. We shall not deprive an appellant of the right to bring such an appeal due to the absence of written reasons, and accordingly we shall exercise our discretion under rule 39(2) of the Employment Appeal Tribunal Rules in allowing the appeal to proceed, unsatisfactory though this state of affairs is in the absence of reasons given by the tribunal.

	In these circumstances it will be convenient to deal with the various matters raised before us under the following headings.

Discovery of medical records
Prior to her dismissal the appellant was examined by a Dr Howlett at the respondent’s request. We understand that Dr Howlett was employed at the time not by the respondent, but by Forest Healthcare NHS Trust. His services were provided through the Trust under a contract for the provision of an occupational health scheme made between the Trust and the Respondent. He produced a report on the appellant on which the respondent relied in reaching its decision to terminate her employment.

	By a letter dated 1st August 1997 the appellant applied to the tribunal for orders for specific discovery which included the following:

“1.	Copy/copies of all contemporaneous medical notes and clinical notes made by the respondents’ medical adviser, Dr Howlett at the time [sic] his examination and consultation with the applicant on 30th January 96 and of his alleged “discussions” over phone with the applicant on 15th February 96;
...
3.	Copies (legible) of all medical certificates/sick notes received by the respondents from the applicant’s G.P. for the last 2 years of applicant’s service (if any of these are not available, respondents to notify the applicant straight away, with reasons);
...
19.	Particulars of the contractual relationship that existed between Dr Howlett/Forest Health Care and the respondents in the period between September 95 and April 96, enclosing relevant documents and noting any changes in terms since April 96;”

The Chairman refused to make those orders. 

	At the hearing on 5th January the appellant through Mr Bari referred to the Employment Appeal Tribunal decision in Ford Motor Co. v Nawaz [1987] ICR 434 for the proposition that a respondent could be ordered to give discovery of the notes and memoranda prepared by the doctor who examined the employee in a case in which it was said that there had been an unfair dismissal on health grounds. In that case, the doctor was of the opinion that the employee was fit for work; he declined to return to work and was dismissed for unauthorised absence.

	It was argued successfully on behalf of the respondent in this case that Nawaz was distinguishable. There, the relevant doctor was employed by the respondent. He was an in-house doctor. Here, Dr Howlett was not employed by the respondent, but by a separate organisation. In these circumstances his notes, since, it is believed, transferred to a new occupational health service provider, BMI, were not in the possession, custody or power of the respondent, and consequently no order for discovery could properly be made against the respondent under rule 4(1) of the Industrial Tribunal Rules of Procedure, applying County Court order 14 rule (1) and/or (2). It is plain that the Chairman accepted the respondent’s contention, and instead of making an order for discovery against the respondent, he directed that if Dr Howlett was not willing to attend the Industrial Tribunal voluntarily the tribunal would then consider ordering Dr Howlett to attend with his documents relating to the appellant under the provisions of rule 4(2) of the Industrial Tribunal Rules of Procedure.

	Mr Bari submits that the Chairman erred in law in not ordering discovery against the respondent. He points out that it would be unnecessarily inconvenient and expensive for his medical expert to attend when Dr Howlett appeared at the Industrial Tribunal, for the purpose of seeing his records in order to prepare a report on the appellant. Mr Bari does not wish to call Dr Howlett as part of the appellant’s case, since he cannot then cross-examine him, and the respondent does not intend to call him either. It is unlikely, we think, that the Industrial Tribunal at the substantive hearing of this case would exercise its power to call Dr Howlett of its own motion.

	It seems to us that the Chairman was entitled to draw a distinction between the facts of Nawaz and this case. It was not suggested in the former that the medical records were not in the possession, custody or power of Ford. It is so submitted on the facts of this case, and we think that it was open to the Chairman to accept that submission. Accordingly we shall not interfere with his refusal to order the documents identified at paragraphs 1 and 19 of the appellant’s letter of 1st August 1997. In any event, there was nothing to prevent the appellant herself from seeking those records from Forest Healthcare and/or BMI.

Discovery of sick notes
This relates to paragraph 3 of that letter. It seems that not all the sick notes, issued by her General Practitioner, have been retained by the respondent to whom they were submitted during the two years prior to dismissal. What records they have they say they have disclosed. In these circumstances no further order is required. Again, it is open to the appellant to approach her own general practitioner for copies of that practitioner’s notes, which will identify the dates for which sick certificates were issued.

Time directions
The appellant complains of the time scale laid down by the Chairman in his letter of 13th January for disclosure of the appellant’s medical report and the date fixed for the substantive hearing. In our view these were directions properly made for the future conduct of the action.

Contacting witnesses
The Chairman directed that if the appellant wished to contact any potential witnesses currently employed by the respondent, the respondent would forward any letters to those employees. Mr Bari complained that such a direction was unduly restrictive. We think he has misunderstood its effect. All that the Chairman was saying was that if he could not otherwise contact such employees, he could do so through the respondent.

Further and Better Particulars
We have considered the request, served by the respondent on 5th January 1998 and ordered by the tribunal on 16th February. It requires the appellant to set out the nature of her case. On 6th February Mr Bari had purported to reply to the request, and on 17th February applied to the tribunal for the order of 16th February to be revoked on the grounds that the respondent had not provided necessary information for him to complete the reply. In our judgment that application was permissibly refused by the Industrial Tribunal; no error of law is made out in the sense that the order was perverse. See Carter v Credit Change Ltd [1979] ICR 908.

	It follows that in our judgment there are no grounds in law for interfering with the various interlocutory orders made by the Industrial Tribunal in this case. Accordingly this appeal must be dismissed.