Appeal No.	 EAT/921/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 August 1999

Before
THE HONOURABLE MR JUSTICE MORISON (P)
MR E HAMMOND OBE
MRS R A VICKERS

MRS P WIMBUSH	APPELLANT

SOUTH DOWNS HEALTH NHS TRUST	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	IN PERSON	
For the Respondents	MISS TUCK
(of Counsel)
Instructed By:
Ms G Leach
Messrs Blake Lapthorn
Solicitors
New Court, 1 Barnes Wallis Road
Segensworth, Fareham
Hampshire  PO15 5UA	

	MR JUSTICE MORISON:	This is an appeal against the refusal by an Employment Tribunal Chairman to order discovery of certain documents.  Mrs Wimbush, the Appellant, has made a complaint to an Employment Tribunal alleging that her contract of employment was broken and that she had been unfairly dismissed.

1	She was employed from July 1989 to January 1999, so nearly 20 years of service, by the South Downs Health NHS Trust who administer, amongst other things, the Brighton General Hospital and the Meadow Lodge Nursing Home.  She was a staff nurse at E grade.  It is her case that during the course of her duties she became aware of what she perceived to be improper treatment of patients at Meadow Lodge Nursing Home.  She said this in her IT1:

“I was suffering depression because of the injustice of the patient abuse cover up…”

That is a contention that she made and it is accepted that she made both oral and written complaints to the Management Authorities about what she perceived to be this patient abuse.  

2	It is the Hospital’s case that they carried out a full and proper investigation into the allegations which had been made; that, essentially, the allegations were either not accepted or were accepted in the sense that it showed that there were management shortcomings in relation to the way the nursing home was run.  But in any event the complaints were fully and properly investigated.  Mrs Wimbush was not content, as we understand it, with the findings by her employers and made a complaint to the UKCC which is the central governing body of nursing staff.  In due course, we have been told, the UKCC were not of the view that there had been any improper investigation of the complaints.  

3	The Hospital Authorities say that Mrs Wimbush came to leave her employment either because of her ill health or because it was impossible to find her suitable redeployment.  Contained within the second reason is an assertion that it was not appropriate for her to return to work at her former place of work having regard to the fact that she had recently made an allegation to the UKCC.  

4	The documents in question which Mrs Wimbush wishes to see are those which relate to the internal Hospital investigation carried out apparently, by two people; one an employee of the NHS Trust who is not a nurse, and the other a partner in the firm of solicitors which advises the Trust.  The investigation was done and a report was produced which was considered by the NHS Trust and in due course a decision was taken that there should be redeployment.  That was a Board decision, as we understand it.  There were appeals against the ultimate decision to dismiss and there is a transcript of a two-day hearing of the appeal.  It is plain that Mrs Wimbush’s contention is that she was made ill by the alleged ‘cover up’ and that she ought not to have been redeployed.  By redeploying her she was being, in a sense, discriminated against as a whistle blower and unfairly dealt with.

5	It seems to us inevitable that the Tribunal in the course of its deliberations is going to have to examine the merits or otherwise of Mrs Wimbush’s allegation that having made a complaint, the Hospital covered it up and then discriminated against her as a whistle blower by seeking to redeploy her.  That being so, it seems to us it cannot be said that the documents are manifestly irrelevant and will not be necessary for the fair determination of the issues for the Tribunal.  We have to say with great respect to the leaned Chairman that he appears to have dealt with the question of necessity rather than the question initially of relevance, but he is right to ask the question ‘are these documents necessary for a fair determination of the application’.  We are of the view that they are necessary because they will form the basis on which her contention that she was made ill by the cover up hinges; and that the documents are also, as it seems to me, relevant to the question as to whether she should have been redeployed.  

6	However, it is to be noted that the investigation was carried out, as one would expect, in circumstances where the participants were promised confidentiality.  It seems to us that the disclosure that must take place should reflect these sensitivities, which will not impair the doing of justice between the parties.  Accordingly, it seems to us entirely appropriate that the identity of the member of staff in any statements, either made or taken from them about these complaints and any name of the patient, should be deleted.  The same applies to the report of the investigation which was put to the NHS Trust Board.  It seems to us that in relation to the witness statements which were made or taken, there is no need for the identity of the maker of the statement or the person from whom the statement was being taken to be identified.  In other words it can be removed, provided that there is annexed to this disclosure a schedule of names of those from whom statements were taken or have had made statements.  It may well be that Mrs Wimbush will be able to put two and two together and work out which person made which statement, but it seems to us that even if that happens there is no indication that she has any desire to ‘go public’ in relation to these issues.  She has not been to the press about them, despite the fact that these events occurred some time ago, but it does seem to me that it will protect properly the interests of the makers of the statement who can therefore be assured that the Court has respected the confidentiality of the process which was undertaken by the employers.  

7	Accordingly, we allow the appeal against the Chairman’s refusal to grant her discovery.  Provided that it is dealt with in the way that I have indicated, justice can then be done between the parties.  It seems to me that what needs to happen is that a list of documents should be prepared by the Respondents.  That list should be initially on the same basis as a list of documents is prepared in normal litigation, in other words they should list all documents which are in their custody, possession of power which are relevant to the issues in these proceedings and that list should contain any documents for which any legal professional privilege, if any, is being claimed.  I am not suggesting there will be any documents subject to that privilege, but I would expect to have included within that list the documents from the Board which indicate the consideration that was given by the Board to the report which was presented to them and any action that needed to be taken; together with any Board documents relating to the redeployment of Mrs Wimbush and any minutes, of course, as well.  It will also contain the report of the inquiry and the statements of or from witnesses.

8	Having prepared that list, and I will discuss the timing of it, it seems to me that what should then happen is that the Hospital should prepare witness statements and the bundle of documents which it proposes to use in evidence by Tuesday 7 September, and that Mrs Wimbush should be required to provide her own witness statement by Tuesday 14 September, together with the witness statement of any witness whom she proposes to call.  It would be helpful if the witness statements could link into the bundle of documents which will have been prepared so that they can easily be followed.  

9	It is clear that there is going to be a large amount of reading to be done before the case can actually sensibly commence, and therefore I recommend to the Employment Tribunal that when the case comes on on 21 September, they take whatever time is needed for them to read the witness statements which have been prepared, together with the bundle of documents, or at any rate, to the main pages of it which will be referred to in the witness statements.  That will enable them to make sure that the proceedings before them do not deteriorate into an investigation as to whether a nurse did in fact do something which should not have been done to a particular patient, which is not the issue before the Employment Tribunal, but rather to investigate whether the employers have in fact carried out a proper and fair inquiry into an allegation raised by one of their employees who was concerned by what she perceived was going on.  It was their duty to conduct those proceedings properly in order to satisfy their contractual obligations to a member of their staff and possibly also by reference to their grievance procedure.  

10	Those are the directions that I give.  The list of documents to be served by whatever seven days away is from Tuesday 7 September, that would give you about a week to do it.  That would be Tuesday 31 August.  I know that Bank holiday is coming up but I would have thought that the documentation as you have indicated is likely to be ready by then.  So we will allow the appeal in that way, and make those directions.