Appeal No. EAT/116/91

	EMPLOYMENT APPEAL TRIBUNAL
	4 ST. JAMES'S SQUARE, LONDON, SW1 4JU

		At the Tribunal
		On 18 July 1991

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MR R J LEWIS

	MR R H PHIPPS

R THOMAS	APPELLANT

R C FRAME ERECTORS LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR J COUCH
Solicitor
Pattinson & Brewer
8-12 New Road
Chatham
Kent
ME4 4QR

For the Respondents	MISS R DOWNING
(Of Counsel)
Gisby-Harrison
126 Crossbrook Street
Cheshunt
Herts
EN8 8JS

	MR JUSTICE WOOD (PRESIDENT):  By an Originating Application dated 24th August 1990, Mr Thomas claimed a redundancy payment from the Respondents, R C Frame Erectors Ltd.  

	He was a Steel Fixer and the Notice of Appearance raises the issue of whether or not he was an employee.  Whether he was working on a self-employed basis.  That was clearly an issue which was likely to be heard by an Industrial Tribunal as a preliminary point. 

	One of the very important aspects for any tribunal looking into the issue raised by those pleadings was an examination of the tax position of the Applicant.  That is not only relevant, but highly relevant.  As a result the way in which the tax affairs of the individual are managed and the documentation relating to it, including any return to the Inland Revenue;  any demands by the Inland Revenue;  any correspondence with the Inland Revenue, are all material documents for the purposes of this inquiry by the Industrial Tribunal. 

	Solicitors acting for the Respondents clearly took that view, and they pursued a policy of trying to obtain copies of any documents of that nature or similar nature, relating to the times when Mr Thomas was working with the Respondents;  indeed it might have been relevant to look at them say, over the last three years to see what system he was operating.  As a result, by a letter of the 13th September 1990, they asked for copies of Mr Thomas's accounts and tax records for the whole of the period since the 10th September 1985, when he says he was employed by the Respondents.  They ask also for copies of tax exemption certificates during the period;  any form SC60s;  and details of his VAT registration.  Those are clearly material matters.

	The reply was from a District Officer, Mr Westerman of the Transport & General Union, who does not merely fail to answer the request but draws attention to an Authority and says that the case for the Applicant was that he was employed, so that does not take it much further.

	The Solicitors, Messrs Gisby-Harrison, for the Respondents pressed the matter further in a letter of 5th October, and as they received no reply to that, they write on the 19th October saying:
"I have, therefore, made a formal application to the Tribunal for an Order for Discovery."

	The Tribunal made an Order of the 25th October directing a list of the documents and referring to the letter, and that Order pointed out that there was a power to vary and set aside for good cause, if good cause was raised and of course, the possibility that if the Order was not complied with the application might be "struck out".

	The next letter is one of the 19th November 1990, from Mr Westerman to the Solicitors and that says:
"Mr Thomas, the Applicant, has been in touch with Accountant, whom I understand is also the Accountant for your client, with a view to complying with your request in so far as he can.  However, I must say Mr Thomas's tax relationship with the Inland Revenue are between himself and the Inland Revenue."

	The next letter, the following day, from the Solicitors, point out that they need those documents and they are relevant.

	On the 5th December there is a further letter from Mr Westerman saying that:
"Mr Thomas is currently unable to disclose the information you are requesting."

	The Solicitors then, on the same date, write seeking written authority for them to approach the Inland Revenue any by a letter of 18th December, enclosing one of the 14th December from Mr Thomas himself, Mr Westerman encloses Mr Thomas's letter, which is a refusal to allow the Respondents to be in touch with the Inland Revenue over these relevant matters.

	A letter of the 14th January was written by Mr Westerman to the Tribunal office and he points out that:
"Mr Thomas was under the Exemption Certificate Scheme for the Building Industry whereby he supplied his employer with vouchers as receipts of gross payments from R C Frames Erectors.  He has no tax records as such R C Erectors are well aware as he was directly employed under their control and through the Exemption Certificate Scheme was allowed to pay tax in arrears."

	On the 25th January 1991, an Order is made by the Industrial Tribunal that there should be a Preliminary Hearing, and presumably there was a document with it fixing a date, but we do not have that with us.  However, the preliminary issue is whether or not the Applicant was an employee, that was the issue and paragraph 2 of that document says:
"It is very important that both parties should bring to the hearing any documents which may be relevant to the preliminary issue.  If a party is not sure whether a document is relevant, he should bring it to the hearing so that it is available if required.

A notice of hearing is attached."

That then, was an Order that a Preliminary Hearing should take place in this matter, when of course, the documentation would be examined.  Subsequent to that, whether it was made by the same learned Chairman or not we do not know, by Order of 8th February 1991, sent to the parties on the 11th February, a learned Chairman Mr Williams "struck out" the Application of Mr Thomas for failing to comply with the Order of the 25th October 1990, notwithstanding a further letter requesting him to do so, or to show cause why the claim should not be "struck out".  That Order was made under Rule 12(2)(f).

	Mr Couch,  of Messrs Pattinson & Brewer,  is now instructed in the matter and has raised a number of points.  First of all he submits, that in citing Rule 12(2)(f) in the Order of the 8th February 1991, the Tribunal was not relying upon the correct power, and the correct power to use was under Rule 4.  That would seem to us correct but it is a point which does not really carry any merit with us.  However, he takes a further point which seems to us to be a valid point, namely that there seems to have been a conflict between the Order directing a Preliminary Hearing and then followed by an Order "striking out",  so that the Order for the Hearing was totally ineffective.  It seems to us that there seems to have been a failure by the latter Order to recognise that a date had already been set and a request and Order had been made for the documents to be brought along.  In the circumstances we feel that the learned Chairman in exercising the discretion to "strike out" erred in that he did not take sufficient, or any account, of the fact that the Order had already been made that the matter should be heard at a Preliminary Hearing.  For that reason we feel that this Appeal should be allowed.

	However, before leaving this case, let us make one or two matters perfectly clear.  We reject Mr Couch's submissions that really the Applicant here, and Mr Westerman on his behalf, are not open to any criticism, that they acted reasonably, or that they were reasonable in the way that they conducted themselves.  We do not agree.  It is abundantly clear that the documentation that was being sought was relevant.  It is equally clear that the rules of the County Court apply to discovery in Industrial Tribunals and that those rules provide for list of documents or affidavit of documents and it is essential that if Ordered those Orders should be complied with.  The importance of an Order for lists or affidavit is that the affidavit or list will conclude three main parts, first, a list of those documents which are in the possession of the Applicant, and which are relevant;  secondly, and not less important, those documents which have been in his possession and are no longer in his possession;  and thirdly, any claims to privilege.

	In this case, if after the compliance with the Order which we are proposing that the learned Chairman should make it appears that there are documents which are no longer in power of Mr Thomas but which are in the hands of someone else;  if it so appears, and if thereafter it is necessary because Mr Thomas will not give Authority for the documents to be produced to subpoena, then that is the sort of situation which in the view of this Court merits an Order for Costs;  it is obstructive;  it is deliberately obstructive;  and it is quite unnecessary and unhelpful in the way in which the Tribunals are trying to work.

	The course we propose to take therefore, is to allow the Appeal;  to ask the learned Chairman to look at this matter at a Preliminary Hearing or a Summons for Directions at which, he may very well, and we would suggest it would be right for him to make an Order, it is a matter for him for affidavit of documents and with a very short time limit, because we indicate now the preparation of that affidavit should start today and therefore there may be very stringent time limits on that occasion.  There can be very little excuse if there is a failure to comply. 

	Secondly, the learned Chairman may very well look at matters of subpoenas and no doubt, in due course will bear in mind the question of costs.  We deprecate the way this matter has had to be brought ultimately, to us;  it need never have happened if the Order had been complied with in the first place.  Those remarks we hope will be of assistance, and possible guidance to others in the future.

	This Appeal is allowed and we make no further Order than that but we would ask the learned Chairman to arrange a further hearing in the early future.