Appeal No. EAT/0536/03/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 August 2003

Before
HIS HONOUR JUDGE D SEROTA QC
MRS R CHAPMAN
MISS G MILLS

SMARTFORCE UK LIMITED	APPELLANT

MRS K DAVIS	RESPONDENT

Transcript of Proceedings

JUDGMENT

INTERIM HEARING

Revised

	APPEARANCES

For the Appellant	MR M DUGGAN
(Of Counsel)
Instructed by:
Messrs Bracher Rawlins
Solicitors
180 Fleet Street
London
EC4A 2HG	
For the Respondent	MR P WALLINGTON
(Of Counsel)
Instructed by:
Messrs Dawsons
Solicitors
2 New Square
Lincoln’s Inn
London
WC2A 3RZ	

JUDGE SEROTA QC

1.	This is an appeal from an interlocutory decision of an Employment Tribunal at Watford chaired by Ms Amin on 24 April 2003 when she decided that certain evidence proposed to be given by one the Applicant’s witnesses Catherine Baldwin was not the subject matter of legal professional privilege.

2.	The case concerns an allegation by the Applicant of unfair dismissal.  She was made redundant and her case is that the redundancy was a sham.  She seeks to rely upon the evidence of Ms Baldwin who was a former manager of the Respondent who herself was made redundant and who wishes to give evidence about a meeting that took place in April 2002 in relation to an earlier redundancy exercise in which she says it was made explicit that the redundancy exercise was a sham.

3.	This meeting was a meeting attended by other members of the management team and the Respondent’s solicitor Mr Hayes.  The Employment Tribunal heard evidence relating to this matter from a number of people, including Mr Hayes, together with the evidence of one of the senior managers Mr Cotton, and also, of course, the evidence Ms Baldwin.  The Employment Tribunal also considered a number of documents and there were two rival cases being put before the Employment Tribunal.

4.	The case for the Applicant was that this was a commercial meeting at which Mr Hayes’ participation was at best peripheral and where he simply fielded questions that might have come up from time to time.  The Respondent’s case was that this meeting was in fact called for the purpose of acquainting Mr Hayes with the circumstances relating to the proposed redundancies so that he could assimilate that information and give legal advice as and when called upon to do so.  

5.	The Respondent’s case thus was that the dominant purpose of the meeting was for the provision of information to Mr Hayes and Mr Hayes’ legal advice.  The Applicant’s case is the dominant purpose of the meeting was commercial.  We have obviously read Mr Duggan’s skeleton argument.  We are not aware of any authority directly in point as to when evidence is sought to be given as to what transpired at a meeting when both commercial matters were discussed and in which legal advice was given.  It seems to us that the approach of the Employment Tribunal (that evidence is admissible as to what took place but that references to legal advice and requests for advice should be redacted) was a common sense approach that mirrors the approach to disclosure of a document produced for a commercial, as opposed to a privileged purpose.  The document must be disclosed in a redacted form.  If the dominant purpose of the meeting was for the provision of information for the purposes of obtaining legal advice and the giving of legal advice then the whole meeting is privileged and no evidence can be given relating to it save with the consent of the Respondent.  If the dominant purpose of the meeting on the other hand was commercial but legal advice was given, then effectively evidence relating to that meeting has to be redacted so that those matters that clearly relate to the seeking and giving legal advice are excluded from evidence.  The issue was, therefore, fact sensitive.  

6.	Mr Duggan in effect conceded that if on the evidence the Tribunal properly came to the decision or would come to the conclusion in the future that the dominant purpose of the meeting was not for obtaining legal advice but for the purposes of enabling managers to have a general discussion and inform themselves about a redundancy exercise, he could not argue that evidence relating to that was privileged.  The matter therefore is entirely fact sensitive.

7.	The Employment Tribunal considered a significant amount of evidence.  It is apparent from the decision that it heard the evidence of Mr Hayes which is consistent obviously with the case put forward by the Respondent.  Mr Hayes’ evidence was in fact that he did most of the talking at the meeting.  On the other hand the evidence of Ms Baldwin was, as we have said, that the meeting was predominantly commercial.  There was also evidence which was strongly relied upon by the Employment Tribunal of a Mr Cotten who was a senior manager and Mr Cotten’s evidence is set out at paragraphs 12 and 13.  His evidence was that Mr Hayes and Mr Kahl who is an American and the senior manager unfamiliar with UK redundancy perspective had invited Mr Hayes to attend the managers’ meeting to explain from a legal prospective the redundancy procedure and assist with questions that management might have.  He stated clearly there was no other brief than that and Mr Hayes attended (the Employment Tribunal quoting his evidence)

“simply to hear managers’ views”

8.	We would observe (and I have, of course, the benefit of sitting, with Ms Chapman and Ms Mills who have considerable industrial experience) that it would be relatively unusual for the kind of meeting described by Mr Duggan as being a meeting primarily called for the purposes of the receiving and giving of legal advice, to be held at that stage in a redundancy exercise.  One would expect such advice to have been given at a meeting with the senior management at an earlier stage and indeed it is quite clear that Mr Hayes did meet with Mr Cotten and with Mr Kahl and give them legal advice, prior to this more general meeting.

9.	The Employment Tribunal in paragraph 21 after having heard live evidence and considered the bundle and the submissions went on to make a number of findings of fact.  The principal one was that the dominant purpose of the meeting was to inform management about the impending redundancies and the processes to be adopted.  The meeting was a senior management meeting arranged by Mr Kahl and Mr Cotten to meet with their respective managers.  If the Employment Tribunal had stopped there it would be difficult to see how one could in fact criticise its judgment other than the fact that it might have been somewhat unspecific.  There was clearly material before it that would justify that particular finding.  It went on to say that this was the evidence given by one of the Respondent’s own witness Mr Cotten.  It then goes on to say that Mr Hayes gave some legal advice that was confined to very specific issues and it again refers to Mr Cotten’s evidence that Mr Hayes had attended simply to hear manager’s views.  The evidence Ms Baldwin wished to give did not refer to legally privileged conversations and it then in paragraph 21(e) concludes that the meeting took the form of a round the table discussion where all managers participated.  “Mr Cotten stated in evidence that Mr Hayes attended simply to hear the manager’s views.  We prefer his evidence in coming to our conclusion that the dominant purpose of the meeting was to inform managers about the redundancies.”

10.	The Respondents were concerned that the Employment Tribunal had in fact misinterpreted or misrecorded the evidence of Mr Cotten and accordingly made arrangements for obtaining the chairman’s notes (of which there are two versions) which have been put before us and the parties agree that these notes are accurate.  It is right to say that these notes are ambiguous and a reasonable case can be made for saying that the Employment Tribunal may have been wrong in relying upon the evidence of Mr Cotten as recorded in the judgment.  The notes are perhaps not as clear as they might have been and the reasoning of the Employment Tribunal is not as clear as it might have been; for example there is no attempt made to deal specifically with the evidence of Mr Hayes other than in the reference to the fact that Mr Cotten’s evidence was to be preferred.

11.	However, where the recording of the evidence is ambiguous the Employment Tribunal is in a far better position than we might ever be in, to know what exactly that evidence was.  The Employment Tribunal clearly had material before it that would justify the conclusion it came to.  While we have some sympathy with the Respondent and we think that the notes of evidence are not as clear as they might have been and the findings are not as clearly rooted in findings as to the evidence as they might have been, this is far from being a case in which we should interfere.  We take some comfort from the fact that this whole dispute seems to us to be very much like a storm in a tea cup and that the evidence is far from being as damaging and prejudicial to the Respondents as they fear.  They may well have to call Mr Hayes to give evidence but Mr Hayes is after all a solicitor and his evidence is likely to have or might be described, as having, a high credibility.  On the other hand whereas doubtless Ms Baldwin is going to be attacked so far as her credibility is concerned on the basis that she is someone who is already parti pris having herself been made redundant.  We are not of course saying that this is the case but these are the arguments that are likely to be raised at the Employment Tribunal.
 
12.	In all the circumstances of the case we do not consider that Mr Duggan has made out a case that the Employment Tribunal was wrong.  There was evidence that would justify the decision it came to even though it is not expressed as clearly as one would have wished and even if the recording of the evidence suggests that it was rather more ambiguous than referred to by the Employment Tribunal. 

13.	We have noted that Mr Wallington in his skeleton argument indicated that this might be an appropriate case to seek costs.  Of course, we will hear what Mr Wallington has to say, but having regard to the unsatisfactory nature of the evidence we are provisionally far from satisfied that this was an inappropriate appeal to be brought.