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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Castel v Dillons The Bookstore [1998] UKEAT 1221_98_0810 (8 October 1998) URL: http://www.bailii.org/uk/cases/UKEAT/1998/1221_98_0810.html Cite as: [1998] UKEAT 1221_98_810, [1998] UKEAT 1221_98_0810

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APPEARANCES

 

For the Appellant	MS N ASANTE (Representative) The A-Connexions 98 Portland Crescent Stanmore Middlesex HA7 1NA
For the Respondents	THE RESPONDENTS NOT PRESENT


 


JUDGE PETER CLARK: By an Originating Application presented to the Employment Tribunal on 1st May 1998, the appellant, who is a Frenchman, complained of constructive unfair dismissal and race and sex discrimination by his former employer, Dillons. He was employed from 11th November 1990 until 30th March 1998.

That complaint, resisted by the respondent, came on for hearing before the London (North) Employment Tribunal on 27th July 1998. The case was not completed on that day and was adjourned part-heard until, we understand, 13th and 14th October 1998.

On 1st September 1998 the appellant's representative, Ms Asante, applied by letter to the Employment Tribunal for an order for discovery in relation to the following:

1. In respect of documents which she described as having been tampered with and were therefore misleading (and she refers to extracts from Ms Lynne Whitehand's diary for certain dates in 1998).

2. Diary extracts for February or March 1997 referring to the material incident at work involving the appellant and another employee; together with file notes relating to the same month, also relating to the same matter.

3. A video of the incident in February 1997, or alternatively, information on rules, regulations or guidelines regarding the production and security of video material at the respondents.

Finally, she refers to the tribunal's direction at the close of the hearing on 27th July, that the respondents should produce a scale sketch plan of the locus in quo.

On 15th September 1998 the tribunal replied in these terms:

"A Chairman of the Employment Tribunals has directed me to write to the parties regarding the Applicant's representative' s letter dated 1 September 1998.

The Tribunal will consider the application at the resumed hearing. ..."

The letter continues with a direction to the respondent to bring all the documents, if there is a dispute about them, to the resumed hearing.

On 16th September Ms Asante responded to that letter contending that the decision to delay the hearing of her discovery application until the resumed substantive hearing would deprive the appellant of an opportunity to properly prepare his case, based on the documents now sought by way of discovery. She also complained about a refusal to co-operate on the part of the respondent or its representative.

By letter dated 23rd September Mr Bennett, the respondents' representative, stated that the material requested was available to the appellant's representative. In other words, there was no objection to the discovery sought.

On 25th September the Employment Tribunal affirmed the earlier direction that the discovery application would be dealt with at the resumed hearing on 13th October and further repeated that direction by a letter of 1st October.

Dissatisfied with the Employment Tribunal's Orders, the appellant appealed to this tribunal by a letter dated 28th September 1998.

Strictly the issue in this appeal is whether the Chairman acted perversely in directing that the appellant's discovery application of 1st September 1998 should not be heard until the first day of the resumed substantive hearing, applying the well-known Wednesbury test.

However, the appeal becomes academic if the discovery sought has been, or will be given well in advance of the resumed Employment Tribunal hearing.

Having considered what has already happened, and the position adopted by Mr Bennett in written submissions to us and in correspondence we are satisfied that the appeal is rendered academic on the following basis:

1. The original 1998 diary has been inspected by the appellant's representatives on 5th October 1998 in a visit to the respondents' premises. There is no further issue in relation to the first part of the discovery application to which we have referred.

(a) The appellant's representative saw a diary for 1997 on the occasion of that visit. They are not satisfied with what they saw, but that will be a matter for cross-examination and submissions at the substantive Employment Tribunal hearing. Discovery and inspection, in our judgment, has taken place.

2. (b) The File Notes sought are, the appellant's representative was told on 5th October, in the possession of Mr Bennett. Provided that he discloses copies to Ms Asante by close of business on Friday, 9th October 1998, proper discovery will then have been given in relation to that class of documents.

3. (a) The respondent has said that the video is no longer in existence. That satisfied the requirement for discovery. As to what happened to it, that will remain for cross-examination.

. (b) On 5th October the appellant's representatives were informed that no written rules or regulations exist relating to the production and security of video materials at the respondents. That deals with that part of the discovery application.

4. Mr Bennett has promised to provide a copy of the sketch plan by close of business on 9th October 1998.

It follows, on the premises set out, that the appeal is academic and will be dismissed for that reason. If, however, the foregoing premises or any of them turn out to be incorrect, then it will be open to the appellant to renew his application for discovery and inspection at the renewed Employment Tribunal hearing, and if, due to unreasonable delay on the part of the respondent or its adviser, an adjournment is then necessary, we anticipate that the Employment Tribunal will consider whether the respondent should pay the costs thereby thrown away.