Appeal No.	 EAT/790/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 July 1998

Before
THE HONOURABLE MR JUSTICE MORISON (P)
MRS T A MARSLAND
MR R N STRAKER

MR A BRASSEY	APPELLANT

CITIBANK NA	RESPONDENTS

Transcript of Proceedings

JUDGMENT

INTERLOCUTORY HEARING

Revised

	APPEARANCES

For the Appellant	IN PERSON	
For the Respondents	MR WALSH
(Solicitor)
Messrs Edwards Geldard
Solicitors
Dumfries House
Dumfries Place
Cardiff CF1 4YF	

	MR JUSTICE MORISON (PRESIDENT):     This is an interlocutory appeal.  It is an appeal by the Applicant to an Industrial Tribunal against various orders made by an Industrial Tribunal Chairman contained in a letter from the Industrial Tribunal dated 16 June 1998.

	Broadly speaking, this is a breach of contract claim which has been brought by Mr Brassey, a Trader who had been employed by Citibank in their Trading Room for a relatively short period of time.  His employment came to an end in circumstances which has led him to allege that his former employers have acted effectively in bad faith towards him and in breach of the disciplinary procedures, to the benefit of which he was contractually entitled.  He claims that as a result of the manner in which he was dismissed and the way the whole thing was handled, his reputation has been damaged and he has been stigmatised.

	The Industrial Tribunal considered on 11 June various applications by the parties and it made various orders.  This appeal concerns the extent of the discovery obligations of Citibank in the context of the complaints which have been made.  

	Mr Brassey, who is acting on his own behalf and has done a certain amount of research for the purposes of these proceedings, submits that the Chairman of the Industrial Tribunal has erred in law in a number of respects in relation to the orders which he made.

	The first relates to a question as to whether Citibank should be obliged to disclose disciplinary records relating to two named individuals who I will identify as ‘C’ and ‘W’.  In relation to W it is Mr Brassey’s contention that the circumstances in which he came to leave Citibank were factually similar to the circumstances in which he came to leave, save that W was permitted to resign, which he did before taking up other employment in the City, whereas he, Mr Brassey, was not given that option.  He says that it is necessary for him to have disclosure of the disciplinary files in relation to these two individuals, so as to enable him to maintain his case of malice which is what he is alleging against Citibank.

	It seems to us clear that the documentation in relation to those two individuals is prima facie confidential and should not be disclosed unless it is essential for the doing of justice between the parties and then only disclosed on terms as to confidentiality, and disclosure will need to be managed in a satisfactory manner.  But at the present time we are not persuaded that it would be correct to order their discovery in advance of the hearing.

	It seems to us that the Industrial Tribunal should proceed to hear this application.  If, during the course of the case a further application is made to them for the disclosure of these documents, then they will be able to make a judgment as to whether these documents need to be disclosed in the interests of justice and much will depend on the view that they have then formed on the basis of the material put before them.

	Accordingly, I have indicated to Citibank’s Solicitor that it would be sensible for them to have available at the Industrial Tribunal documents related to those two individuals, so that if they were ordered to be disclosed or the Chairman wished to see them in advance of making any such order, then there would be no delay to the proceedings.  But as at present advised, we are not of the view that these are discloseable documents in the context of this litigation.

	The second matter which we need to deal with relates to a request by Mr Brassey that Citibank provide documentary details of all trades which occurred during a random ten day period.  It is his view that the matter which led to him leaving the Company was a matter which was the practice followed by Traders at Citibank and that he was picked on unfairly in relation to it and not only unfairly, but maliciously.

	He has already had four days of trades disclosed to him, during one of which the market in New York was closed and he tells us that from those days of trade he will be able to point to transactions which demonstrate that his case is correct, namely that what he was doing was no more than common practice.

	It seems to us in those circumstances that it would be quite wrong to order any further disclosure of documents in relation to any random ten days.  There is no reason to believe, on the basis of what Mr Brassey has told us, that the four days of trade which have already been disclosed, are not as representative of the trades generally as any other days of trade.  Accordingly, we are of the view that the Industrial Tribunal Chairman was entirely entitled to refuse to make such an order.

	The third matter relates to telephone conversations occurring between the Currency Dealing Department and the outside world on 12 and 13 January 1998.  The reason why Mr Brassey wants to have access to these tapes is that it will help him to prove that he was “bad mouthed” by his colleagues in such a way as to have his reputation damaged.  This is part of his claim for damages for loss of reputation and stigmatisation.

	It seems to us that the learned Chairman was entirely correct in the exercise of his discretion in relation to that matter.  Mr Brassey will be able to give evidence as to the damage that he says he has sustained to his reputation and how it has been reported to him by others about his dismissal.

	Accordingly, it seems to us that at the present time, there is no reason to believe that the decision of the Industrial Tribunal in relation to any of these matters were other than one which fell well within the discretion of the learned Chairman.  I should point out to Mr Brassey that this Appeal Tribunal can only deal with points of law.  We are dealing with a discretion exercised by an Industrial Tribunal Chairman who is responsible for managing the factual elements of a claim.  It is rare for us to intervene where a discretion has been exercised.  We can only do so if we are satisfied that it was either perverse or there has been some overt misdirection.  None has been shown to us.

	We are quite satisfied that the way the Tribunal is proposing to deal with this case cannot be faulted and accordingly the appeal will be dismissed.