Appeal No. EAT/905/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 25 July 1995

	Before

	HIS HONOUR JUDGE N BUTTER QC

	MRS T A MARSLAND

	MRS M E SUNDERLAND JP

MR S HUSSAIN	APPELLANT

EAST BERKSHIRE COMMUNITY HEALTH NHS TRUST	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	INTERLOCUTORY HEARING 

Revised

	APPEARANCES

For the Appellant	IN PERSON

For the Respondents	MR D PILLAY
(of Counsel)
Messrs Le Brasseur J Tickle
Solicitors
Drury Lane
34-43 Russell Street
London
WC2B 5HA

	JUDGE N BUTTER QC:   The question before this Tribunal today concerns the procedure that has been adopted by the Industrial Tribunal in relation to the question of discovery, that is to say disclosure of documents.

	Mr Hussain is dissatisfied with the way the Tribunal has dealt with the matter.  He takes the view that a whole class of documents or classes of documents are required to be disclosed, but the real point is there has not been a judicial decision in the Tribunal below, in the sense that the Tribunal has considered the application for discovery, followed by hearing argument on both sides as to what documents may be relevant or not.

	The matter was dealt with quite shortly on 20 July 1994 when, in the light of correspondence, the Chairman reached a decision but it is not plain, with respect, on what basis he considered the issue of relevance and in the judgment of this Tribunal today, it is desirable that the Industrial Tribunal should consider first of all, specifically what documents are sought and then, having heard argument on both sides, decide what order for discovery, if any, should be made.

	In the view of this Tribunal today, the correct procedure is for Mr Hussain to identify specifically the documents or classes of documents which he says ought to be disclosed, for the Respondents to have the opportunity of considering that and then the matter should be heard by an Industrial Tribunal consisting of a Chairman and two members who should hear the application, and should determine the result in the light of the arguments which they have heard.

	In all the circumstances, it is unnecessary and undesirable, for us to express any view as to what decision that Tribunal should reach.  It is plain from the House of Lords decision in Science Research Council v  NASSE [1980] AC p1028 and the observations, for example of Lord Wilberforce at page 1065 between G and H, that it is the Tribunal which has the discretion in determining what order should be made in relation to the disclosure of documents.

	In all the circumstances, this Tribunal today orders that the matter return to the Industrial Tribunal below to consider the application on the lines I have just indicated.

	This Tribunal does not think it appropriate to give the direction which has been requested, even assuming it does have power to do so.  It is open to the parties, if they think fit, to apply to the Regional Chairman or otherwise for a transfer.  

	So far as this Tribunal is concerned, the matter is remitted in the way we have already indicated.