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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Conlon v. ABN Amro Management Services [2001] UKEAT 156_01_0702 (7 February 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/156_01_0702.html Cite as: [2001] UKEAT 156_1_702, [2001] UKEAT 156_01_0702

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APPEARANCES

 

For the Appellant	MR GAVIN MANSFIELD (Of Counsel) Instructed by Messrs Stephenson Harwood Solicitors One St Paul's Churchyard London EC4M 8SH
For the Respondent	MR RICHARD CLAYTON (Of Counsel) Instructed by Messrs Hammond Suddard & Edge Solicitors 7 Devonshire Square Cutlers Gardens London EC2M 4YH


 


JUDGE P CLARK

1. This case is currently proceeding before the Stratford Employment Tribunal.
2. The Appellant, Mr Conlon, was employed by the Respondent Bank as Senior Vice President and Senior Legal Advisor from 17 February 1992 until his dismissal by notice given on 29 February 2000.
3. As Head of Compliance during his employment he was involved in a long investigation into alleged financial impropriety affecting employees of the Bank and its clients. That investigation was known as Midsummer. It resulted in written reports by the Appellant, the 8^th and final one being delivered in April 1999, and contact with the regulatory authority, the SFA.
4. He contends that his dismissal was for an inadmissible reason within the scope of s103A of the Employment Rights Act 1996. In short, that he was a Whistleblower.
5. By their Notice of Appearance the Respondent admits that his dismissal was statutorily unfair, but denies that it was for the reason alleged by the Appellant.
6. An order for disclosure was made by consent in July 2000. That was followed by 2 further directions hearings resulting in orders made on 2 August and 6 November 2000. Still the Appellant's advisers were not satisfied that the Respondent had made full disclosure.
7. By letters dated 11 January 2001 the Appellant's solicitors:

(a) applied to the Employment Tribunal for orders striking out the Notice of Appearance, alternatively an unless order requiring the Respondent to produce certain documents listed in a schedule to a further letter

(b) sent to the Respondent's solicitors.

8. That application came on before a Chairman, Mr J N Leonard, at a directions hearing held on 30 January 2001. By letter dated 1 February the Chairman set out his ruling. He concluded:

(1) that the Respondent was under a duty to make proper disclosure; failure to do so may lead to adverse inferences being drawn

(2) that, in this jurisdiction, he did not consider that unless orders or affidavits verifying disclosure are appropriate

(3) that as to 3 specific classes of documents sought

(a) the Respondent's solicitor agreed to produce a copy of the 'Dutch' report, whilst disputing its relevance

(b) the Chairman was not persuaded of the relevance of certain European Works Council documents

(c) if the Appellant's timesheets are relevant they must be disclosed.

9. In the event he declined to make any of the orders sought; in particular, he did not believe that the extreme step of striking out the Notice of Appearance could be justified.
10. There is no appeal against that particular ruling. Otherwise, against the refusal of all other orders sought, this appeal is brought.

Disclosure

11. Rule 4(1)(b) of the Employment Tribunal Rules of Procedure gives a Chairman power to order such discovery and inspection as might be ordered by a County Court. The powers of the County Court are now contained in Part 31 CPR.
12. Failure to comply with an order for discovery may result in the Originating Application or the Notice of Appearance being struck out in whole or in part, rule 4(7).

The Appeal

13. It is common ground between Counsel that we do not have a general power of review over Employment Tribunal interlocutory orders. We can only interfere in a case such as this where an error of law is made out. The principles were conveniently set out in Adams & Raynor v W Sussex County Council [1990] IRLR 215, a disclosure case, following the Court of Appeal decision in Ashmore v British Coal Corporation [1990] IRLR 283. In Adams Wood J identified 3 issues in such appeals:

(a) whether the order was made within the powers given to the Employment Tribunal

(b) whether the Chairman's discretion had been exercised in accordance with guiding legal principles

(c) whether the exercise of discretion could be attacked as being perverse in the Wednesbury sense.

14. In this appeal Mr Mansfield advances broadly 2 grounds.
15. The first is perversity, the 3^rd issue in Wood J's formulation. He has given 4 specific examples of instances in which he submits that the Chairman's reasoning, at paragraph 5 of his letter of 1 February, can probably be characterized as perverse. We have considered those submissions, each of which was advanced and rejected below. Our conclusion on this part of the appeal is that Mr Clayton is correct in submitting that the perversity threshold has not been crossed. Accordingly we dismiss this part of the appeal.
16. The second ground is the obverse of Wood J's first proposition. It is submitted, not that the Chairman's approach, at paragraph 4 of his reasons, was outside his powers, but that he failed to recognise the full extent of his powers. This relates to the second of the Chairman's findings as we have summarised them above.
17. It is clear, as Mr Clayton accepts, that the Chairman has power, under rule 4(7) effectively to make an 'unless order' and secondly that he has power, under rule 4(1)(b), to exercise the powers of the County Court to order a party to make what is now a disclosure statement under Part 31.10 CPR, rather than an affidavit.
18. Mr Clayton has sought to persuade us that, in context, the Chairman was saying no more than that in this particular case it was not appropriate to make such orders. In that endeavour he has failed. The ordinary meaning of the words used by the Chairman indicate to us that he did not consider it appropriate for Employment Tribunals to make such orders. That in our judgment represents an undue fetter on his undoubted powers.
19. To that extent we are satisfied that the Chairman fell into error. Having identified an error of law it is open to us to exercise the powers of an Employment Tribunal under s 35(1) Employment Tribunals Act 1996 and to make what we regard as the necessary order.
20. It is clear to us that from the nature of the complaint in this case and the protracted wrangling over disclosure, there exists a high level of suspicion by the Appellant as to the Respondent's good faith. Whether that suspicion is borne out will be a matter for the Employment Tribunal which is to hear the case over 5 weeks commencing on 19 February 2001.
21. We think that the correct course, not opposed by Mr Clayton, is to require the Respondent, through its proper officer, to make a disclosure statement in accordance with the CPR Practice. That officer should bear in mind that the Respondent is obliged to disclose not simply those documents on which it relies, but also those adverse to its case and helpful to that of the Appellant. A reasonable search for documents must be carried out. If the statement proves, at trial, to be incorrect, inferences adverse to the Respondent may be drawn.
22. In these circumstances we shall allow this appeal and direct that by 4.30 pm on 14 February 2001 the Respondent, by its proper officer, Mr Van Waesberghe, prepare and serve a disclosure statement on the Appellant's solicitors.