Appeal No.	EAT/880/00 EAT/881/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 July 2000

Before
HIS HONOUR JUDGE PETER CLARK
LORD DAVIES OF COITY CBE
MRS D M PALMER

MR N MURRAY	APPELLANT

H M LAND REGISTRY 	RESPONDENT

Transcript of Proceedings

JUDGMENT

IUNTERLOCUTORY HEARING

Revised

	APPEARANCES

For the Appellant	IN PERSON	
For the Respondent	MR J B VINECOMBE
(Solicitor)
Instructed By:
Flint Bishop & Barrett
Royal Oak House
Market Place
Derby DE1 2EA	

	JUDGE PETER CLARK:	

1	The applicant, Mr Murray, was employed by the respondent as a registration officer from 20 June 1998 until his resignation on 10 September 1999.

2	On 5 December 1999 he presented an Originating Application to the Employment Tribunal complaining of constructive unfair dismissal.  It is his case that in his application for promotion the respondent, through its line manager, Mr Heatley and the personnel manager, Mr Davies, who chaired the promotion board failed to ensure equality of opportunity for all candidates for promotion and in particular, the applicant.  As a result, he says, he resigned from the employment.

3	The respondent resists the complaint.  By its Notice of Appearance it is said that the applicant, in common with other candidates, was required to have a recommendation for or against promotion from his line manager.  Mr Heatley did not recommend him for promotion.

4	A meeting took place between the appellant and Mr Heatley on 10 September concerning the latter’s non-recommendation for the appellant’s promotion.  It is alleged that the appellant lost his temper and became violent.  The interview was terminated.  Following a further heated discussion with Mr Davies the appellant resigned.

5	It is alleged that the non-recommendation by his line manager for promotion would not have prevented the appellant attending an interview in due course before the promotions board.

6	From the papers before us it is clear that the appellant has pursued his case with vigour, criticising the Cardiff Employment Tribunal staff over their handling of the matter; accusing the respondent of forgery and falsifying documents and complaining of poor legal advice from his trade union, PCSU.  That said, it is our task to unravel the questions of law, if any, raised in the two appeals presently before us.

The Appeals

7	Mr Murray has launched three appeals They are:

(1)  an appeal against a decision by an Employment Tribunal Chaired by Dr Rachel Davies, sitting on 7 April 2000 at a pre-hearing review promulgated with reasons on 25 April 2000 in which the Tribunal

(i)  expressed the opinion that the claim had no reasonable prospect of success
(ii)  gave a costs warning
(iii)  did not order a deposit to be paid on the grounds of the applicant’s means.

An attempted application for a review of that order was refused by the Chairman by a decision dated 19 May 2000.

This appeal (813/00) is not before us today.  It is listed for preliminary hearing before the EAT on 22 November 2000.

(2)  An appeal against an order refusing the appellant’s application for discovery of documents by a letter dated 7 June (EAT/880/00) (“The Discovery appeal”).

(3)  An appeal against an order refusing the appellant’s application for a postponement of the substantive hearing of this case presently fixed for 2 August 2000.  That order was contained in a letter to the appellant from the tribunal dated 4 July 2000 (EAT/881/00) (“The Postponement appeal”).

Both the Discovery appeal and the Postponement appeal are before us today.

Discovery

8	On 11 February 2000 the appellant wrote direct to the respondent setting out a list of documents, discovery of which he required.  He also gave the names of 21 employees of the respondent whom he wished to call as witnesses in these proceedings.

9	He followed that up with letters to both the respondent and their solicitors dated 11 March.

10	On 7 April at the pre-hearing review, the respondents handed to the applicant their schedule of documents.

11	On 10 April the applicant wrote to the respondent’s solicitors asking that the copy documents be certified and he sought inspection facilities.

12	On 13 April he repeated his earlier request for discovery and added further requests in respect of certain computer print-outs.

13	On 14 April the respondent’s solicitors replied, stating that no further discovery was necessary.

14	As a result the appellant made application to the tribunal for an order by letter of 15 April.

15	On 17 April he attended the respondent’s premises to inspect their documents.  On 20 April he wrote alleging that documents had been altered.

16	On 2 June he wrote to the tribunal enquiring about his discovery application.

17	On 7 June the tribunal replied.  The application was refused on the ground that the documents which he sought did not appear to be relevant.

Postponement 

18	On 15 June a Notice of Hearing for 2 August was sent to the parties.  The hearing had already been postponed from January 2000 on the respondent’s application.

19	On 17 June the appellant requested a postponement.  That application was refused by order of a Chairman communicated to the parties by letter dated 4 July 2000, on the grounds that the interests of justice demand that the matter be finalised.

Interlocutory Appeals 

20	We have reminded ourselves that we do not have a general discretion to decide interlocutory matters de novo.  We can only interfere where the order made by the Chairman below is Wednesbury unreasonable, that is where he has taken into account irrelevant matters, failed to take into account relevant matters or has reached a conclusion which no reasonable Chairman, properly directing himself, could reach.

Parties Submissions 
(1)  Discovery

The respondent has provided a good deal of discovery by list.  An inspection took place on 17 April.  It was incumbent on the appellant, in making his application for discovery of specific documents to raise a prima facie case first for the relevance of those documents to the issues in the case.  The respondent denies their relevance in circumstances where they say the promotion process was little advanced before the appellant’s resignation.  Secondly, to demonstrate that the documents are necessary for the fair disposal of the proceedings.  The respondent, having challenged their relevance, contends that it follows they are not necessary.

It seems to us that the appellant failed to make out a case on either relevance or necessity.  He has contended that he has been hampered by the ETS staff failing to provide what he calls “procedural details”, effectively advice as to what he must show to establish his case on discovery.  That is not the function of the ETS staff.  It is for a party, even if unrepresented, to present a viable case.  If he does not do so, his application will fail.  That is what happened here in relation to discovery.  We can discern no error of law in the Tribunal’s order refusing discovery.

(2)  Postponement

An important plank in his request for a postponement is the tribunal’s failure to order discovery.  Since we have found that the tribunal’s discovery order is not flawed in law, it follows that that strand of his argument fails.

Secondly, he submits that justice requires that the difficulties facing an unrepresented party be recognised.  In practice, no distinction is made between represented and unrepresented parties.  That said, having read the extensive correspondence in this case, we are not persuaded that the ETS staff, in dealing with the appellant’s frequent letters reqesting assistance, has behaved other than professionally and courteously .

We return to the tribunal Chairman’s reason for refusing the postponement application.  He or she thought that this matter ought to be finalised.  The respondent agrees.  So do we.  More particularly, we can find no error of law in this order refusing a postponement.

(3)  Witness Orders

For completeness, although originally seeking the attendance of 21 employees of the respondent as witnesses, it now transpires that the appellant has in fact sought Witness Orders in respect of only two of those potential witnesses, Messrs Tippett & Allen.  Orders were made in respect of both these witnesses by the Tribunal on 14 July.  Accordingly no complaint is or can be made in relation to witnesses being available to be called at the hearing.

Conclusion

It follows, there being no error of law made out by the appellant, that both these appeals, 880/00 and 881/00, must be dismissed.