Appeal No.	 EAT/336/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 September 1999

Before
HIS HONOUR JUDGE PETER CLARK
MR S M SPRINGER MBE
PROFESSOR P D WICKENS OBE

MISS A A ADERIBIGBE	APPELLANT

THE COLLEGE OF LAW	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellant	MISS Y ADEDEJI
(of Counsel)	

	JUDGE PETER CLARK:	

1.	In September 1996 the appellant, Miss Aderibigbe enrolled on the Legal Practice Court [“LPC”] at the College of Law, Store Street, London with a view to qualifying as a solicitor.

2.	In March 1997 she sat examinations in two subjects, Wills, Probate and Administration and Business Law and Practice. When the results were published she learned that she had been failed in Business Law and Practice, scoring 39%. The pass mark was 50%. She passed her other paper (Wills, Probate and Administration) with 54%.

3.	She resat the Business Law examination in September 1997 and was awarded a mark of 44%, again failing to meet the 50% pass mark.

4.	She was then required to retake both examinations. She did so in December 1997 but claimed to have suffered from headache, then severe migraine on the successive examination days. She submitted a Regulation 25 application, that is a provision to cover candidates whose performance in examinations is affected by illness.

5.	She was told that she was awarded marks of 47% in both papers. No dispensation was granted under Regulation 25. That was her final opportunity. She was then required to leave the course.

6.	It is the College’s case that her examination scripts were checked by the Director of Ethnic Minority Matters, Abdool Rasheed. He concluded that the scripts had been properly marked. The system is that examination papers may be marked both by internal examiners and by an external examiner.

7.	On 15th May 1998 the appellant presented a complaint of racial discrimination to the London (North) Employment Tribunal against the College and its Chief Executive, Professor Savage, under ss. 1 and 12 of the Race Relations Act 1976. She is black.

8.	In her Particulars of Complaint she put her case in this way:

“I was not convinced that I had failed the papers, so I wrote to the Chief Executive of the College, Professor Nigel Savage and asked him to consider having my papers remarked. My letter was forwarded to the Director of the Store Street branch of the College, Professor Bernard George, who informed me that my papers could be remarked.
Every attempt to have this done has failed.
I am aware that in comparison with white students, a large number of students from the ethnic minority group are failing the LPC. I am also aware that in my class alone, a disproportionately high number of ethnic minority students have been asked to withdraw from the LPC in comparison with white students.”

9.	By letter dated 16th October 1998 she requested discovery of certain classes of documents, which are set out in extenso at paragraph 3 of the Employment Tribunal’s reasons. We need not set them out in this judgment.

10.	By a further letter dated 8th November 1998 she explained the basis for her discovery application as follows:

“The basis of my claim is not that the external markers failed me and thereby discriminated against me in doing so but that they passed me and inspite of this The College of Law subsequently published my result as a fail. The College would have had to match up by candidate number to my name at some point and it is at this point that anonymity is removed that I believed the discrimination occurred.”

11.	The question of discovery came before a tribunal chaired by Mrs J R Hill, sitting at London (North) on 16th November 1998. The application for discovery was opposed wholesale by the respondent on the basis that the only question was whether or not anonymity was retained throughout. That submission appears to have appealed to the tribunal and for the reasons given, particularly in paragraphs 11 and 12 of their decision, they refused to make any order for discovery.

12.	The matter now comes before us on appeal. Miss Adedeji had sought to persuade us that certainly items (1) to (6) in paragraph 3 of the tribunal’s reasons are necessary for the fair disposal of these proceedings.

13.	We reject that submission in relation to paragraphs (1) and (2), that is the answer sheets for the December 1997 Wills Probate and Administration and Business Law examinations for all students who took the examination. It seems to us that those documents do not go to an issue in the case and that an order for discovery in those terms would have been oppressive. In these circumstances we can see no ground for interfering with the tribunal’s order, so far as those paragraphs are concerned.

14.	Similarly, Miss Adedeji does not press the matter in relation to paragraphs (7) to (12) of the list contained in paragraph 3 of the tribunal’s reasons.

15.	However, in relation to items (3) to (6), that is the question papers for the two examinations, the appellant’s answer sheets for the examinations which she took in December 1997, and the marking system used for the papers there referred to, are, it seems to us, arguably necessary for the determination of the issue raised by the appellant in her letter of 8th November 1998; namely, whether the external markers passed her papers and it was then the College of Law which transformed those passes into fails. It seems to us that that question can only be answered by reference to the papers which she wrote and the markings, which she received. Further, it seems to us that as to the issue of anonymity, it is arguably relevant and necessary to see whether the papers retain their anonymity throughout simply by reference to her candidate number.

16.	In these circumstances, we shall allow this appeal to proceed on the limited grounds in relation to paragraph (3) to (6) of the list of discovery items sought in the letter of 16th October 1998.

17.	For that purpose, we shall direct that the appeal be listed for two hours, Category C. There will be exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full appeal hearing. No further directions are necessary.