Appeal No. EAT/129/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27th October 1993
	Judgment delivered on 25th January 1994

	Before

	THE HONOURABLE MR JUSTICE KNOX

	MR J DALY

	MR T C THOMAS CBE

BRITISH AEROSPACE PLC	APPELLANTS

MR D C GREEN & OTHERS	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR J HAND (QC)
Messrs Nightingales
Solicitors
12 St John Street
Manchester M3 4DX

For the Respondents	MR B CARR (of Counsel)
Messrs Rowley Ashworth
Solicitors
247 The Broadway
Wimbledon
London SW19 1SE

	MR JUSTICE KNOX:   British Aerospace plc ("the Company") appeals from an Interlocutory Order made by a Chairman of Industrial Tribunals at Manchester dated 10th March 1993 confirming an Order dated 11th January 1993 insofar as the latter ordered discovery by the Company of its assessments of those who were not selected for redundancy but also were in the same selection group as those who were selected for redundancy by the Company.  Another item of discovery ordered by the Order of the 11th January 1993 was set aside by the Order dated 10th March 1993 but there is no cross-appeal regarding that and no issue arises concerning it.

	The Applicants in the Industrial Tribunal were 234 out of some 530 employees of the Company made redundant at its works at Warton near Preston.  The great majority of the Originating Applications seek relief for unfair dismissal but there are also some 13 or 14 Originating Applications which seek relief on the basis that the dismissal was because of trade union membership or in one case the result of unlawful racial discrimination.  The 530 made redundant were chosen out of a total of over 5000 employees who were divided into various selection groups according to the nature of their employment.  Some of these selection groups were very much larger than others.  The principal issues raised in these Originating Applications concern the lack of consultation and the nature and application of the selection procedures.  Discovery has been made of the assessment forms regarding the several applicants and no issue arises regarding that.  What is in issue is whether the assessment forms of the other employees who escaped redundancy but also were in the same selection group as the several applicants should be the subject of discovery and inspection.  The applicant employees claim that this discovery is necessary for them to be able to assess whether the selection procedure adopted by the Company was fairly applied.  For the Company it is said that the Chairman of the Industrial Tribunal misdirected herself both as regards relevance in connection with the subsisting issues and as regards issues of confidentiality.  The latter arises in connection with the assessment forms which have spaces for assessment by way of rating and comment by an assessor concerning 6 areas of performance or capacity of individual employees being considered for redundancy, viz:-

	Knowledge of Work/Relevant Experience
	Achievement of work output
	Quality and accuracy of work
	Flexibility/Ability to do other work/jobs
	Ability to contribute to effective teamwork
	Initiative.

In addition there was a points system for sickness.

The forms were headed "IN STRICT CONFIDENCE: THIS FORM MUST NOT BE PHOTOCOPIED".

The assessments by the assessors were checked and approved by other management personnel.  These assessments after being thus made, checked and approved were converted into marks by different employees and these marks enabled grading for redundancy to be effected.

	The Chairman in her decision under appeal first considered whether disclosure of all the assessment forms, and not just those of the applicants which had been disclosed, was necessary for the fair disposal of the proceedings.  It was not disputed that that was the correct question.  Discovery in such proceedings is governed by rule 4(1)(b)(ii) of the Industrial Tribunals (Rules of Procedure) Regulations 1985 which refers to the rules governing discovery in county court proceedings.  Order 14 rule 8(1) of the County Court Rules provides so far as relevant "the court, if satisfied that the discovery, disclosure, production or supply sought is not necessary, or not necessary at that stage of the action or matter, may dismiss or adjourn the application and shall in any case refuse to make an order if and so far as it is of opinion that discovery, disclosure, production or supply, as the case may be, is not necessary either for disposing fairly of the action or matter or for saving costs".  It follows that relevance is not by itself enough; necessity for one or both of the stated purposes is needed too.  The relevance that is looked for is relevance to the issues in the proceedings and it follows from that that the issues need to be identified and defined before discovery can be ordered.  The converse situation where discovery is sought in order to enable issues to be defined is commonly called a fishing expedition i.e. an enterprise with a view to discovering issues worth pursuing rather than discovery of documents in aid of either party's case on existing issues.

	The Chairman set out the submissions made by trade union representatives in favour of discovery of all the assessment forms.  These were that a perusal of all the forms would show the procedure to have been subjective, inconsistent and unfair and that since the employees were graded they had effectively been compared with each other.  The Chairman stated that the forms had a prima facie prospect of relevance and two paragraphs later after dealing with confidentiality said that she considered the totality of the assessment forms certainly relevant and material.  She continued:

		"It is accepted that a comparison between the reports on people selected for favourable and unfavourable treatment is a proper test of the fairness of the application of a selection procedure and that such reports should, subject to considerations of oppressive volume, be disclosed."

Finally on this aspect she held that the discovery would not be oppressive in volume because the ratio of forms to applicants was in the region of 21 to one.  That calculation was fairly clearly based on a comparison of the overall number of applicants 234 and the total pool of candidates for redundancy, somewhat over 5000.

	Mr Carr on behalf of the respondent employees made two preliminary submissions based on propositions of law which were not in themselves challenged by Mr Hand Q.C.for the Company. The first proposition was that this Tribunal, with its limited statutory appellate jurisdiction, can only interfere with an interlocutory order made in an Industrial Tribunal if it is shown that an error of law is involved in the making of that order. Where the order below consists of the exercise of a discretionary power, as in the case before us of the power to order discovery, such an error would typically consist of having taken into account a factor which should not be taken into account or conversely having failed to take into account a factor which should have been. There is no general power to review the decision below as in a full re-hearing. Adams v. West Sussex County Council [1990] I.C.R.546. It follows from this that for this Tribunal to allow the appeal an error of law in the Chairman of the Industrial Tribunal's decision has to be shown. That was not challenged but it was submitted there was such an error.

	The second proposition was that, subject to irrelevant exceptions regarding the jurisdiction of the Industrial Tribunal, an appellant before this Tribunal is not allowed to raise issues not raised before the Industrial Tribunal. As a proposition Mr Hand did not challenge this but he denied that the rule applied in the present case to prevent the Company from claiming, as it did, that the Chairman of the Industrial Tribunal failed to have regard to the issues between the parties at the present stage of the proceedings. The point of the submission, which lies at the heart of one of the principal issues sought to be raised in this appeal, is that the Company's case was that, given the very large number of applications all concerned with the same redundancy selections, sample cases should at this stage be selected and, if necessary, discovery ordered in relation to the issues raised in the sample cases. The employees' case on the other hand was that overall discovery  of all the assessments of all the employees potentially exposed to redundancy should be given so as to enable the applicants to select sample cases. The Company's case on this basis does involve an emphasis on the issues in the applications at this stage and Mr Carr submitted that no such submission was made to the Chairman of the Industrial Tribunal. Mr Hand accepted that in the hearing before the Industrial Tribunal Chairman it had not been submitted that because sample cases had not been agreed therefore no discovery of assessment forms as asked should be given. On the other hand relevance was raised as one of the grounds for discharging the order of the 11th January 1993 and is indeed in the Notice of Appeal to this Tribunal.

	The Chairman of the Industrial Tribunal after a pre-hearing discussion before her on 25 September 1992 directed that the case should proceed on the basis of sample cases (in itself a plainly sensible way of dealing with the very large number of applications and not the subject of challenge by either party) and said that the applicant's representatives would propose which cases were to be treated as samples once the respondents' documents had been produced and matters of inspection dealt with. The Chairman at the same time expressed her opinion that (inter alia) all the assessment forms would be necessary for the fair disposal of the proceedings but that was not a direction and no more than an expression of a preliminary view. The hearing before the Chairman which lead to the Order under appeal was attended by a solicitor on behalf of the Company and his main challenge to the relevance of the assessment forms of those not selected for redundancy was, it is true, besides the confidentiality issue, based on the argument that the assessment procedure was not a comparative one. He did not object that the sample cases should be selected before discovery was given. However relevance was clearly raised by him and relevance falls to be assessed in accordance with the rules. We consider it would be too narrow an interpretation of the general principle that issues not raised before the Industrial Tribunal may not be raised on appeal to shut out Mr Hand's submissions on relevance in the context of the issues as from time to time defined. We bear in mind that there is no question of additional evidence being needed to deal with the issue argued on behalf of the Company. The question is one of principle and it would in our view be highly unsatisfactory not even to consider an argument of principle on relevance in relation to claimed discovery on the ground that the particular argument regarding relevance as opposed to the general issue of relevance was not advanced below.

	On that basis we go on to consider whether an error of law is shown in the decision of the Chairman of the Industrial Tribunal. The majority of us has reached the conclusion that there are two such errors.

	The first relates to the issue as to relevance mentioned above. It will be recalled that the Chairman said:

		"It is accepted that a comparison between the reports on people selected for favourable and unfavourable treatment is a proper test of the fairness of the application of the selection procedure and that such reports should, subject to considerations of oppressive volume, be disclosed."

That statement came immediately after a reference to Science Research Council v. Nassé [1979] I.C.R.921 and British Railways Board v. Natarajan [1979] I.C.R.326 as to which she correctly observed that they related to selection, albeit in sex and race discrimination cases. There is in the majority view a very significant difference in principle between the type of sex and race discrimination case such as those cited above and claims of unfair dismissal on grounds of selection for redundancy. This difference resides in the fact that in the typical sex and race discrimination cases there is involved a positive selection from a limited field of candidates who are often unknown to the applicant and discovery can often be perfectly effectively given of the other candidates' relevant documentation on an anonymous basis. Those features are not present in cases regarding selection for redundancy where those who escape redundancy are known and where discovery of their assessment forms cannot sensibly be effected on an anonymous basis. Moreover there is in principle in the majority view no valid ground for allowing what are called fishing expeditions by departing from the well established principle that the definition of issues should precede discovery.

	The majority is fortified in these views by the decision, very properly drawn to our attention by Mr Carr, in Rolls Royce Motor Cars Ltd v. Mair an unreported decision of this Tribunal dated 23 March 1993. This was a closely similar, but of course not identical, case to the one before us, in that a decline in business had led to compulsory redundancies on a large scale and the fairness of the selection for redundancy was challenged. Wood J. said at an early stage in the decision: 

		"The issues involve the extent to which at a very early stage and in each case, it is necessary or reasonable to order discovery where an employer has had to make redundant a substantial number of staff resulting in multiple applications to an Industrial Tribunal, raising various issues and with a number of different representatives engaged."

The employer appealed against an order that it should give discovery with regard to all employees who were likely to be affected by the redundancies of (inter alia) the employer's assessments naming each employee and their scores for each of the criteria in such assessments. The employer's arguments which were upheld by the Employment Appeal Tribunal included one that it was for the applicant to show some basis upon which relevance could be assessed, otherwise an objection could properly be made that the demand for such wide discovery was merely a "fishing expedition". Wood J stated how the members of the Employment Appeal Tribunal would have approached the matter saying:

		"We would not have ordered such wide discovery in respect of all the cases as such an early stage. We would have preferred, first, to identify the specimen cases and then to consider what discovery was necessary upon the issues raised and properly identified in each of those cases."

Taken by itself this passage would suggest that the Employment Appeal Tribunal was substituting its own view for how the Industrial Tribunal should have dealt with the matter but that criticism, which Mr Carr did advance, is not in our view justified if one has regard to the whole judgement which includes an express recognition of the principle established in Adams v. West Sussex County Council, supra, and contains a finding that an error in principle was involved in the following passage:

		"We must also caution ourselves against interfering with the exercise of this discretion, as we would have taken a different course. However having done so we are of the opinion that the learned Chairman erred in failing to isolate the specimen cases and to identify the relevant issues in each case; and in failing to address his mind to the necessity for each limb of discovery at the present stage. We also take the view that the Order made was oppressive and if used as a precedent could exacerbate industrial relations and run counter to the fundamental basis of trust and confidence between an employer and each of his employees not only those involved in the present litigation."

	We need hardly say that the Chairman in the case before us did not have the benefit of that decision before her, not least because it had not yet been delivered. It does however support the view which the majority of us hold that there is no such general acceptance as the Chairman of the Industrial Tribunal indicated of the view that a comparison between the reports on people selected for unfavourable treatment such as redundancy and on those not so selected should, subject to considerations of oppressive volume, be disclosed. The majority considers that it also supports the proposition that the definition of issues in sample cases where they are directed should in general precede discovery because otherwise the basic principle that discovery should be in aid of cases on ascertained issues is infringed and what is permitted is a fishing expedition. The majority accepts that the decision in Mair is not binding upon us and is factually distinguishable in certain respects. To the extent indicated above it is in the majority view a highly material decision which it would be wrong for us to ignore.

	The minority of us, Mr Daly, is in favour of dismissing the appeal on the ground that in the context of the very serious implications of redundancy in times of economic hardship, it would be right to order full discovery of all assessment forms unless it was established that this would impose excessive burdens. The Chairman of the Industrial Tribunal found as a fact that the ratio of forms to applicants could not be said to be oppressive and burdensome. This is a finding which is binding upon this Tribunal and in that context full discovery in the view of the minority should be given.

	The second error of law into which the majority of us considers the Chairman of the Industrial Tribunal fell was in the  narrowness of her consideration of the confidentiality issue. In the course of her decision she said:

		"In my opinion whereas the assessment forms may have had a high degree of confidentiality during the redundancy exercise, this degree is very much reduced since the exercise was completed: there is no longer any sense in which disclosure can interfere with management's conduct of this exercise."

	In the majority view the concentration on the degree to which the management's conduct of redundancy selection would or might be interfered with is wrong in principle. Unless the redundancies were effected in stages, there never could be a confidentiality objection, if that approach were right because the redundancy exercise would have to be complete before any employee could say that he had been unfairly dismissed, by which time the confidentiality would have evaporated. A more important consideration is that the confidentiality that is in question arises in the context of the relationship between the Company as employer and its employees. It may well be that once that relationship is ended the degree of confidentiality is diminished, if not extinguished, but that is not the position with regard to those employees who were not made redundant and who therefore remained employees until some other event occurred to put an end to their employment. The considerations of confidentiality are therefore in the majority view not nearly so ephemeral as the Chairman of the Industrial Tribunal regarded them. She rated the assessment forms as initially probably having a high degree of confidentiality, a conclusion which we would accept and on the view that the majority takes of the matter it follows that that high degree of confidentiality subsisted to a very significant extent after the redundancy exercise was completed. In discounting it to the extent that she did it seems to the majority that the Chairman failed to take into account something which should have been taken into account.

	It follows from what we have said earlier that in the majority view the sample cases should first be selected and discovery applications dealt with thereafter. The cases are remitted to the Industrial Tribunal to deal with accordingly.