Gray v Merrill Lynch, Pierce, Fenner & Smith Ltd UKEAT/0058/16/DM

Expedited hearing of an appeal against an ET’s Case Management Order on disclosure. Appeal allowed in part.

The Claimant was employed by the Respondent in a sales position, as Director of its Global Credit and Special Situations Group, from August 2010 until his dismissal on 30 September 2014. In his ET claim, the Claimant contended that his dismissal was unfair for the purposes of section 98 of the Employment Rights Act 1996 ("ERA"), alternatively that it was automatically unfair by reason of his protected disclosures contrary to section 103A ERA, and further contended that he was subjected to detriments as a result of those protected disclosures. The Respondent accepted that the Claimant was dismissed but contended that his dismissal was by reason of redundancy. This case is only concerned with the ET's approach to the question of specific disclosure prior to the full merits hearing. The documents in issue in the Claimant's disclosure application at this stage fell into the following two categories: the protected disclosure documents and the redundancy documents. The ET allowed an application for the disclosure of certain documents but refused the disclosure of others on the basis that - accepting the Respondent's contention - the protected disclosure documents sought did not (and could not) exist and the disclosure sought relating to the dismissal was unnecessary for the issues to be determined.

The EAT allowed the appeal in part in relation to both categories of disclosure documents. The Claimant satisfied the Court that the disclosure of the protected disclosure documents was necessary for a fair trial of his claims - the ET's decision in this regard was set aside and an Order for disclosure of the relevant documents sought substituted. However, the application for the disclosure of other protected disclosure documents was dismissed, the EAT saying that the ET had considered the broader points in issue and had received evidence as to the searches already undertaken and was satisfied that there was nothing left falling within the protected disclosure category that it should order to be disclosed. On the redundancy disclosure, the EAT said that the disclosure sought was unnecessary for the issues to be determined. That could not be said, however, in respect of the documents going to the identification of those who were to be considered as part of the pool for selection. Given the evidence of the Claimant before the ET, it was appropriate to order the limited disclosure sought.

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Appeal No. UKEAT/0058/16/DM

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 16 March 2016

Before

HER HONOUR JUDGE EADY QC

(SITTING ALONE)

GRAY (APPELLANT)

MERRILL LYNCH, PIERCE, FENNER AND SMITH LTD (RESPONDENT)

Transcript of Proceedings

JUDGMENT

**APPEARANCES**

For the Appellant MR DAVID MASSARELLA (of Counsel Instructed by: Fox Solicitors 78 Cornhill London EC3V 3QQ

For the Respondent MR DANIEL STILITZ QC (of Counsel) and MR MICHAEL LEE (of Counsel) Instructed by: Simmons & Simmons LLP City Point One Ropemaker Street London EC2Y 9SS

**SUMMARY**

PRACTICE AND PROCEDURE - Disclosure

Disclosure - Rule 31 of the Employment Tribunal Rules of Procedure 2013 - ET Case Management

Various Orders for specific disclosure had been made by the ET as part of its case management of the Appellant's claims of unfair dismissal (section 98 Employment Rights Act 1996 ("ERA")) and automatic unfair dismissal (section 103A ERA). The ET had, however, declined to make other Orders pursuant to the Appellant's application and/or had made an Order that appeared not to reflect the ET's reasoned decision on the application.

The Appellant appealed.

Held: upholding the appeal in part

The first category of documents in issue related to an aspect of one of the alleged protected disclosures. The ET had declined to order disclosure of the documents in question on the basis that they "do not and could not exist". That could not be correct in terms of the documents sought by the Appellant in terms of the record of any bids made by the Respondent. These documents were relevant to the determination of the number of bids made and their timing - an issue going to the reasonableness of the Appellant's belief, which was a point the ET would have to determine at the trial of this matter. The ET's reasons not having engaged with the actual basis of the application and the Appellant having satisfied the Court that this disclosure was necessary for the fair trial of his claims, the ET's decision in this regard would be set aside and an Order for disclosure of the bid documents sought substituted.

As for the other documents sought in this category, however, the position was different. The ET had considered the broader points in issue and had received evidence as to the searches already undertaken and was satisfied that there was nothing left falling within this category that it should order to be disclosed. That could not be said to be an improper conclusion and the appeal against this aspect of the decision was refused.

The second category of documents in issue related to the reason for the Appellant's dismissal. The Respondent contended that this was by reason of redundancy but the Appellant put that in issue, asserting that this was a sham reason. Although the ET had wrongly declined to order background departmental performance documentation on the basis that it did not exist (it plainly did), the decision had been correct given the irrelevance of those documents to the issues before the ET. Although the reason for dismissal was in issue, the Respondent was not relying on departmental performance issues as having led to the redundancy decision: it was asserting that this arose from a general efficiency review of headcount, regardless of the department's performance. That being so, the disclosure sought was unnecessary for the issues to be determined.

That could not be said, however, in respect of the documents going to the identification of those who were to be considered as part of the pool for selection. The ET had apparently considered it sufficient that the Respondent had disclosed documents relating to the assignment of work after the Appellant's dismissal. That, however, did not necessarily show the picture at the time the selection decision was made and the ET's decision had apparently failed to engage with this relevant consideration. Given the evidence of the Appellant before the ET, it was appropriate to order the limited disclosure sought.

Finally, it was common ground that the ET's Order had confused two different categories of disclosure documents when allowing the Appellant's application in respect of communications relating to him/the termination of his employment, in the period immediately post-dating his dismissal. Respecting the decision of the ET in this regard, the appeal would be allowed and an Order substituted for the correct category of documents.

**HER HONOUR JUDGE EADY QC****Introduction**
  1. I refer to the parties as the Claimant and the Respondent as below. This is the Full Hearing of the Claimant's appeal against the Order of the London (Central) Employment Tribunal (Employment Judge Glennie, sitting alone on 29 September and on 5 and 6 November 2015; "the ET"), sent to the parties on 8 February 2016. Both sides were represented then as before me, save that now Mr Stilitz QC is assisted by Mr Lee. This is the expedited hearing of an appeal against an ET's Case Management Order on disclosure. The ET's Full Merits Hearing in this matter is due to commence next month, and I understand that trial bundles are due to be finalised at the end of this week. That is not a wholly irrelevant consideration when deciding whether or not I should interfere with any Case Management Order of the ET, although I accept that documents can still be added even at this late stage.
**The Factual and Procedural Background**
  1. The Claimant was employed by the Respondent in a sales position, as Director of its Global Credit and Special Situations Group, from August 2010 until his dismissal on 30 September 2014. In his ET claim, the Claimant contends his dismissal was unfair for the purposes of section 98 of the Employment Rights Act 1996 ("ERA"), alternatively that it was automatically unfair by reason of his protected disclosures contrary to section 103A ERA, and further contends he was subjected to detriments as a result of those protected disclosures.
  1. The Respondent accepts the Claimant was dismissed but contends that dismissal was by reason of redundancy. It says consideration was given - as part of a regular headcount review - as to whether any redundancies should be made within the team within which the Claimant worked. That team comprised salespersons who (relevantly) either worked primarily on performing debt or primarily on distressed debt; those categories refer to loan debts that the Respondent purchases and sells on to its institutional clients. Such debts are performing if they are likely to be repaid as agreed, distressed if that is not the case. The Claimant was identified as working primarily on distressed debt. It is the Respondent's case that there had been client complaints regarding the Claimant and, as a result, he was identified as a potential candidate for redundancy, albeit that the Respondent carried out some form of comparison as between the Claimant's case and that of a Mr Erenstein, an employee at the same level within the team who was also primarily focused on distressed debt. Having carried out that comparison, the Respondent selected the Claimant for redundancy.
  1. Whilst conceding that the dismissal was unfair on procedural grounds, for the purposes of section 98(4) ERA, the Respondent puts the Claimant to proof as to whether he made a protected disclosure for the purposes of sections 43A-C ERA and, if so, whether he had the requisite reasonable belief so as to mean that any disclosure he made was a qualifying disclosure for the purposes of section 43B. More generally, the Respondent does not accept that the Claimant was subjected to detrimental treatment or that his dismissal was in any way related to protected disclosure. It says that the Claimant's case in this regard is, on its face, very weak. The Claimant, on the other hand, contends that the reason (redundancy) relied on by the Respondent cannot withstand proper scrutiny and his protected disclosures must be the real reason for his dismissal.
  1. The merits of the parties' respective contentions are plainly for the ET at the Full Merits Hearing, and it would be impossible for me to take a view at this stage. The only issue with which I am concerned relates to the question of disclosure; more specifically, to the ET's approach to that question.
  1. In a similar vein, I note further the Respondent's observations as to the extent and cost of the disclosure that has already taken place. On the other hand, the Claimant points out the potential high value of his claim, which he argues needs to be taken into account when considering any issue of proportionality. I am told the Claimant is seeking compensation in the region of some £2.5 million. The Respondent disputes that is in any way likely. Again, that is hardly something on which I can reach any view at this stage.
**The Relevant Legal Principles**
  1. By Rule 31 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 the ET can order any person to disclose documents to a party.
  1. Standard disclosure under Civil Procedure Rules 1998 ("CPR") Rule 31.6 provides, so far as relevant, that:

"Standard disclosure requires a party to disclose only -

(a) the documents on which he relies; and

(b) the documents which -

(i) adversely affect his own case;

(ii) adversely affect another party's case; or

(iii) support another party's case; …"

  1. Rule 31.7 requires a party to undertake a reasonable search for documents falling within Rule 31.6(b) and Rule 31.72 provides that the following factors are to be taken into account when determining the reasonableness of a search: (1) the number of documents involved, (2) the nature and complexity of the proceedings, (3) the expense of retrieval of any particular document, (4) the significance of any document that is likely to be located during the search.
  1. When considering an application for specific disclosure, relevance is only a factor to be considered by the ET; it does not alone justify an Order for specific disclosure. The document sought must be of such relevance that disclosure is necessary for the fair disposal of the proceedings (Canadian Imperial Bank of Commerce v Beck .
  1. When considering whether to make Case Management Orders, such as an Order for specific disclosure, an ET is exercising a judicial discretion and has very wide latitude in so doing. Decisions to make or not make Case Management Orders should be overturned only if they have been approached in the wrong way or if an Employment Judge has come to a conclusion that is simply not open to her (see Beck per Wall LJ at paragraph 23 and Essex County Council v Jarrett .
  1. Moreover, reasons given in decisions on case management issues such as disclosure do not have to be as lengthy and detailed as decisions on liability (see Rule 67(4) of the ET Rules and also as per Langstaff J at paragraph 9 of Jarrett). This is of particular relevance when an ET is faced with an extensive application for specific disclosure.
**The Disclosure Application and the Issues Arising on this Appeal**
  1. The documents in issue in the Claimant's disclosure application at this stage fall into the following two categories: (1) what have been described as the S auction documents and (2) documents evidencing the existence of a genuine redundancy situation and the genuineness of the Claimant's dismissal for that reason. I should note that the documentation sought in the Claimant's application before the ET was far more extensive than that with which I am now concerned. In part that is because the ET made Orders that the Claimant sought (or subsequently did so in clarifying its Order on 9 March 2016); in part it is because the Claimant no longer pursues certain matters. In addressing the issues raised on the appeal before me, I have considered the arguments in respect of each category separately.
**The S Auction Documents**
  1. The documents under this head relate to a bid that was made to purchase debt from a Spanish bank ("S"). The Respondent was interesting in purchasing the debt, which was being auctioned by S, with a view to onward sale. It is common ground that the Respondent made a joint bid for the debt with one of its significant hedge fund clients ("M"). It is the Claimant's case that the Respondent also made a separate bid itself, utilising confidential information obtained from M, which enabled the Respondent to make a better offer. Relevantly, it is the Claimant's case before the ET that he made protected disclosures concerning the Respondent gazumping its client, M, improperly using inside information to do so.
  1. The Respondent denies this history. It accepts it made an individual bid for the S debt but says that was in the first round in the auction, when it competed against M, something that would not be unusual. Having been unsuccessful in that first bid, the Respondent then joined with M to make a joint bid, albeit without any written contract between them. The Respondent contends the Claimant was aware of what in fact took place and cannot therefore have had any reasonable belief in any malpractice. The Claimant does not accept this and puts the Respondent to proof that there was a two-stage process to the auction.
  1. It is against that dispute that the Claimant sought disclosure of the following documents.
  1. First - at paragraph 32.2 of the summary document before the ET - evidence as to the timing of any bids, whether joint or separate, whether in one round or two, or as to the content of those bids. Specifically, the Claimant sought disclosure of all final-bid letters and bid emails submitted in connection with the auction of S's loans, including the agreed final-form joint bid with M or other documentation setting out the price and representations on warranties agreed and the final bids submitted by the Respondent separately. The Respondent's response to that request was that it had conducted manual targeted searches and such relevant documentation as found had been disclosed. Otherwise, it maintained that, "bid letters, agreements and other legal documents are not relevant and/or do not exist".
  1. Second, the Claimant sought - at paragraph 32.3 of the summary document before the ET - communications between the Respondent and M that would tend to support or undermine the Claimant's case as to the agreement between them and the terms of that agreement, specifically:

"All … documents, emails and other electronic documents, including bloomberg and instant bloomberg messages between [specified persons within the Respondent] and members of [M]'s legal team in relation to:

… (i) Reps and warranties; (ii) price; (iii) the final document; …"

This allowed that the search could be restricted to the date range 1 April 2013 to 15 August 2013 and to search terms as specified.

  1. The Respondent responded that there was, as the Claimant would have known, no written agreement between the Respondent and M; the agreement was oral, as would not be unusual, the communications in question had been conducted by telephone and it was not possible to conduct a proportionate search.
  1. The ET refused the application for disclosure under both paragraphs 32.2 and 32.3 on the basis that - accepting the Respondent's contention - the documents sought did not (and could not) exist (see paragraph 23 of the ET's Reasons).
The Arguments on Appeal

The Claimant's Case

  1. The Claimant contends the ET's decision on these requests was perverse. A finding that the documents could not exist was not open to the ET on the evidence and submissions before it. Moreover, the ET's conclusion was overly general and it was impossible to understand the basis of its conclusion: how could a bid letter or some documentary record of the Respondent's bid in the auction not exist? If what the Respondent was referring to was that there was no documentation as to a second bid in August 2013, that might be right but failed to answer the question in terms of the bids made in July. The factual accuracy of disclosure would be an important tool in the case (Darnton v University of Surrey. That was particularly so when the question of reasonable belief was in issue, as here (see per Burton J in McAlpine v Telford . There could be no issue that this disclosure was not relevant, and it was plainly proportionate, given the relatively limited scope of the disclosure sought and given the issues in the case.
  1. Aside from arguing that the ET reached a perverse conclusion in this regard, the Claimant also contended it erred in failing to have regard to a relevant consideration, specifically the content of emails of 17 and 18 July 2013, which the Respondent had disclosed and which evidenced that the Respondent had indeed been excluded from the auction but intended to bid directly and also with M. More generally, the Claimant complains the ET failed to set out and/or engage with his evidence and submissions on these issues, in particular the email exchange of 17 and 18 July, which demonstrated the point he was making that there was more than one bid.

The Respondent's Case

  1. For its part, the Respondent contends that the ET's decision could and should be upheld. On the first category of documentation under paragraph 32.2, although the Respondent was not saying there would be no bid documentation on the S auction, the ET must obviously have been referring to a specific bid by the Respondent that gazumped - that is, successfully gazumped - the joint bid. As there was no such bid, the ET was correct that there was nothing to disclose. The ET could be taken to have been making that specific reference and distinction.
  1. As for the documents referred to under paragraph 32.3 - the general communications between specified individuals within the Respondent and members of M's legal team - this had been addressed in Ms Burgemeister's statement when she had outlined the various searches that had been undertaken in this regard and the disclosure that had been provided. Given the oral nature of the communications and what was in fact in issue in the case, further searches would plainly have been disproportionate.

The Claimant in Reply

  1. In response the Claimant says it was obvious he was saying he had blown the whistle on an attempt to gazump. He had not suggested the Respondent had successfully won the bid; he was aware it had not. The ET could not have understood that the only relevant issue was whether disclosure had been given in respect of a successful bid by the Respondent.
Discussion and Conclusions
  1. Taking first what I consider might be described as the more peripheral arguments pursued by the Claimant in this regard - grounds 2 and 4 of the Notice of Appeal - I do not see that these provide stand-alone bases of challenge. Whilst I can see how the Claimant will no doubt rely on the emails of 17 and 18 July 2013 in support of his case - specifically to counter the suggestion there were two rounds in the auction - I cannot see that the email evidence shown to me is all one way on this point, nor can I see how these emails would enable the Claimant (or indeed the ET) to go behind a proper contention that there was no further documentary material on this point.
  1. As for the objection that the ET failed to more fully set out the Claimant's arguments and evidence, whilst I appreciate that some three days were allowed for the disclosure application, the ET was not obliged to give such full reasoning and explanation as might have been required in a Judgment on a Full Merits Hearing. This was a case management decision, and the Employment Judge continues to exercise case management powers on an ongoing basis in the interlocutory stages of these proceedings. That being so, I do not see that the ET was obliged to descend into greater detail as to the Claimant's evidence or submissions. If the reasoning fails to take into account a relevant matter or has proceeded on an erroneous basis because of a misunderstanding as to what was relevant, that would give rise to a substantive point of complaint; I do not accept that a stand-alone ground of appeal arises in this respect.
  1. I return therefore to the substantive points being made in respect of these documents. The first question for me is whether the ET reached a perverse or impermissible conclusion in respect of the documents sought under paragraph 32.2 of the summary; its conclusion being that the documents sought do not and could not exist. In so concluding, the ET's refers back to its earlier reasoning in respect of the documents sought at paragraphs 18 and 19 of the summary, which suggests it took the view that the documents would be disclosable if they existed (see the ET at paragraph 10). The documents in question were the final bid letters and emails in connection with the auction of S's loans. To conclude that no such documents existed may seem somewhat surprising, and the Respondent accepts that documents of this nature do exist but not such as to evidence a successful gazumping bid by the Respondent.
  1. On this point, I agree with the Claimant; that unfairly misstates his case. He was - on his case - blowing the whistle on what he contends was the Respondent's improper use of information obtained from M in making its separate bid. The number of bids made and their timing, whether successful or not, is relevant to the question of whether the Claimant had a reasonable belief in this regard. The ET's reasoning makes no sense on this category of documentation, and I consider that the Claimant has made good his case that disclosure of this category of documentation is necessary to a fair trial of the issues in this matter, specifically as to the reasonableness of his belief in the matters on which he was, on his case, blowing the whistle; this is, therefore, a properly disclosable category of documents. I duly set aside the ET's Order in respect of the documents specified at paragraph 32.2 of the summary and order that these be disclosed.
  1. I then turn to the documents sought under paragraph 32.3. In my judgment, the position in respect of these documents is different. The ET here seemed to have in mind the broader issues and had received evidence as to the searches that had been undertaken and what had been retrieved as a result. Having heard that evidence and considered these issues over a broader period of time than that afforded to me, the ET was satisfied there was nothing left falling within this category that it could order to be disclosed. Can I say that was an improper conclusion? I cannot see that I can, and Mr Massarella has not persuaded me otherwise. I dismiss the appeal in this respect.
**The Redundancy Exercise Documents**
  1. In respect of the redundancy exercise, the Respondent contends that it keeps its headcount requirements under constant review and in 2014 it conducted headcount reviews, first in March and again in September, both resulting in dismissals for redundancy. It says that, in the September review relevant to the Claimant, it carried out a comparison of the Claimant with the only other member of the team focused on the same kind of clients but, taking into account client complaints regarding the Claimant, considered that he should be selected.
  1. The Claimant puts the reason for his dismissal in issue. His case is that there was no genuine redundancy situation; work of the particular kind he was employed to carry out had not and was not expected to cease or diminish. Another employee - Ms Boddy - was recruited into the department at the time of the headcount reduction exercise, and another employee was deployed into the department almost immediately after the Claimant left. More generally, the department was thriving financially on a low headcount, there had been no redundancies in the department in the March redundancy exercise. The Claimant contends the September exercise was a sham simply designed to get rid of him.
  1. In respect of the issues relating to the redundancy exercise, specifically the existence of a redundancy situation, the Claimant sought specific discovery of the following documents: under paragraph 18.1 of the summary before the ET, performance metrics such as turnover, numbers of deals, decline in profit et cetera; and, under paragraph 19.1 of the summary, documents showing a group-wide headcount reduction exercise in September 2014 and/or rationale for the impact specifically on the group in which the Claimant worked.
  1. The appeal before me is concerned with the documents under paragraph 18.1. The Claimant does not pursue an appeal in respect of those under paragraph 19.1. The ET's reasoning, however, comprehends both categories of document. Accepting that the documents under paragraphs 18.1 and 19.1 would be disclosable if they existed (see paragraph 10 of its Reasons), the ET apparently accepted the Respondent's statement that they did not "as no written exercise was carried out in relation to the business case for redundancy".
The Arguments on Appeal

The Claimant's Case

  1. Acknowledging that in a normal redundancy dismissal case the ET would not investigate a business case as to whether there needed to be any redundancy, the Claimant contends, first, where the reason for dismissal is put in issue there is no such bar on the ET's considering whether the purported redundancy situation is genuine (Cook v Tipper [1990] ICR 716 at 729E). Second, the performance metrics documents (specifically identified as all records and reports showing monthly financial performance of the group for 2013) were plainly relevant to this question, as the ET recognised: if it existed, it was disclosable. The Respondent had not in fact said it did not exist; its response had been that any evidence on this to the extent this issue is relevant will be provided by way of witness evidence. Third, moreover, it would be hard to understand how no documentation of this nature could exist; it comprised general financial records, not specific to the redundancy exercise, relevant to the Claimant's argument that there was no business case for his redundancy. It was necessary for him to be able to test the Respondent's assertions on the reason for his dismissal. The ET erred in considering these documents could not be disclosed because they did not exist. It might have reached that conclusion in respect of the documents at paragraph 19, but it was not open to it to do so in respect of those at paragraph 18.1. Having ruled they were otherwise disclosable, the ET should have so ordered.

The Respondent's Case

  1. For its part the Respondent accepts that the ET could not have declined the application under paragraph 18.1 on the basis that the documents in question did not exist. Plainly, they did. The ET's reasoning in that regard, however, had to relate to the documents at paragraph 19.1. It could be taken that the ET had declined to make the Order sought under paragraph 18.1. First, because it had made the general observation (see paragraph 9) that unless expressly stated disclosure was not permitted. Second, because it had later (see paragraph 20 of its Reasons) refused to order disclosure dealing with the general level of business.
  1. At the worst, the ET had failed to deal with the specific application, and there was a lacuna in the reasoning. If so, the EAT should deal with the point itself. The short point was that disclosure was simply irrelevant. The Respondent was not saying it had undertaken this redundancy exercise because there was poor performance. It arose from a general efficiency review; performance metrics were not relevant to that. Accepting the Claimant was saying the redundancy exercise was a sham, it was not necessary to his case to see the performance data.

The Claimant in Reply

  1. Paragraph 20 of the ET's Reasons was referring to a very different matter, relating to performance issues, and the ET's reasoning could not simply be read across. The relevance of the disclosure was obvious, and the EAT could itself so conclude.
Discussion and Conclusions
  1. This is a point that troubles me. The ET's reasoning seems to expressly refer to paragraph 18.1. In explaining the decision not to order disclosure, the ET apparently considered these documents were disclosable but disclosure should not be ordered because the Respondent had said they did not exist. On the face of the ET's reasoning on that basis, it would therefore seem that, if such documents do exist, disclosure should be ordered.
  1. I have, however, been persuaded by Mr Stilitz QC that cannot be what the ET in fact meant. Although under the subheading referring to paragraph 18.1, the reasoning specifically speaks of the lack of written exercise in relation to the business case for redundancy: the issue relating to paragraph 19.1. I accept the Claimant's point that he is not contending that the decision to make a redundancy was simply unfair but is putting the very reason for his dismissal in issue: the case is put squarely on the basis that the purported reason for his dismissal - redundancy - was a sham. That being so, inevitably the ET will have to look into the plausibility of the reason relied on by the Respondent, and that takes this beyond the scope of the issues considered in the standard unfair dismissal case. That said, the Respondent's case is not that the redundancy was due to poor performance. Even as compared to the earlier redundancy exercise in March 2014, it does not rely on a decline in performance, but simply on an efficiency review leading to a reduction in headcount. That is what gave rise to the redundancy, not any background performance issue.
  1. That being so, I agree performance metrics are indeed irrelevant to the case on sham. I am not satisfied that the ET properly dealt with this question, but I am satisfied, as both parties have allowed in submissions, that I can do so now. I do not allow the appeal and the disclosure application in respect of the documents under paragraph 18.1, albeit for different grounds to those set out in the ET's Reasons.
**Documents Going to the Identification of the Pool for Selection**
  1. Next, under this heading, the Claimant seeks disclosure of documents going to the identification of the pool for selection, specifically the exclusion from that pool of Ms Boddy. He seeks:

"All compass reports recording CB's sale credit data for 2014 (to 24 November 2014) by account and type of account."

  1. The Respondent's case was that selection of the pool for redundancy purposes was by reference to directors who focused on distressed as opposed to performing debt. That meant the pool comprised two members of the team: the Claimant and Mr Erenstein. The Claimant's case, on the other hand, was that the two types of account were interchangeable. Specifically, the exclusion from the pool of Ms Boddy, who had recently been recruited into the department, was a construct. To make good his case in this regard and disprove the Respondent's case that his role and that of Ms Boddy were different, the Claimant sought disclosure of documents showing the accounts he, Mr Erenstein and Ms Boddy worked on, specifically "all compass reports relating to CME's and CB's sales credit data".
The Arguments on Appeal

The Claimant's Case

  1. Although the Respondent had accepted that the Claimant's dismissal was procedurally unfair, that did not mean this was not a relevant issue. The question remained as to why the Claimant was included in the pool when Ms Boddy was not. The Respondent's response to the specific disclosure request in this regard had been that:

"CB's recruitment was not relevant to the issues in the case. CB performed in a different role from the Claimant."

  1. That merely restated the issue. It simply underlined the necessity of the disclosure. The ET had refused the application for this disclosure on the basis that (paragraph 15):

"15. … disclosure about the destination of the Claimant's former accounts and oral evidence on this point should be sufficient. …"

  1. Whilst the disclosure showing the allocation of Ms Boddy's accounts to Mr Erenstein after she left the Respondent's employment was helpful, it was perverse to consider disclosure of documentation postdating the Claimant's departure would show the position at the time the pool for redundancy was created.

The Respondent's Case

  1. The Respondent contends, on the contrary, that the Employment Judge had clearly concluded that the extent of the disclosure sought by the Claimant was unnecessary and it would be unreasonable to require the Respondent to carry out any more extensive search as requested. The Judge considered the disclosure already ordered, together with oral evidence, would be sufficient. Whilst the Claimant might not agree, that was a permissible conclusion. More specifically, the Respondent says it has disclosed relevant documentation relating to the assignment of accounts to Ms Boddy, the Claimant and Mr Erenstein both before and after the Claimant's redundancy, specifically at the time of the identification of those who should go into the pool for selection. To the extent this did not provide details of the type of work as opposed to the identification of the particular accounts, that was because that could not be disclosed in document form as the Claimant sought.

The Claimant in Reply

  1. Answering the Respondent's submission, the Claimant observes that the evidence he gave before the ET (see paragraph 8 of his witness statement in particular) was that the Compass printouts would provide the degree of specificity required.
Discussion and Conclusions
  1. The issue in this regard is not what happened post-headcount reduction, i.e. after the Claimant had been dismissed; the Respondent may well have then had to carry out some form of reorganisation and require particular members of the team to take on different types of work. The issue is what the position was at the time the selection process was undertaken, the time at which the pool for selection was defined and created. Or, rather, the issue for me is whether the ET demonstrably took into account all relevant matters in considering the disclosure application in this regard? I do not consider it can be said that it did. It is the position prior to the Claimant's redundancy that is in issue, not what happened to the work thereafter and the ET's reasoning fails to comprehend this point.
  1. I then ask myself whether what Mr Stilitz QC has told me on instructions is sufficient. Given the evidence before the ET from the Claimant's witness statement, however, I do not think it can be. Given the material I have, which is obviously limited, I therefore allow the appeal on this point and order disclosure of the Compass reports for Ms Boddy for 2014 as sought.
**Documents relating to the Claimant's Dismissal**
  1. The Claimant also sought disclosure of internal or external documents for the period 16 September to 14 November 2014 relating to his dismissal, the circumstances for it and the reasons for it. The ET records the position under this request at paragraph 30 of its Reasons. The Order made specifies that the 1,122 emails to be reviewed are those referred to at paragraph 6.5 of the witness statement of Ms Drummond. Ms Drummond is a Director of Epiq, an eDiscovery Operator engaged on this case by the Respondent. Paragraph 6.5 of her statement describes how searches using the terms "AG" and "AD", as the Claimant had requested, had been carried out against certain custodians (account holders) as detailed in the evidence of Ms Burgemeister. Referring back to Ms Burgemeister's evidence, it is apparent that the 1,122 documents she and therefore Ms Drummond were referring to in fact related to the search carried out for "AG" or "AD" near the term "Apollo". That in turn referred to a different issue in the case, the Claimant's removal from the account Apollo, part of his detriment case.
  1. So, although the ET apparently intended to make an Order requiring the Respondent to review a greater number of emails, messages and so on relating to the period in question - that is, the period immediately following the Claimant's dismissal - it in fact erroneously ordered that the Respondent review emails, messages et cetera relating to a different point and time period.
  1. The Respondent accepts something went wrong here. Although the ET had explained (see paragraph 9 of its Reasons) that unless it was clear that the ET had decided to make an Order of disclosure it could be taken that it had declined to do so, the Respondent accepted an error had arisen in the ET's reference on this point; it could not be said that the ET had not intended to make an Order for disclosure.
  1. On the other hand, the Respondent had carried out the disclosure exercise in respect of the two specific allegations made in the ET1 relevant to this point, and nothing had been discovered of relevance. More generally, the Respondent had undertaken a review of the documentation as referred to in Ms Burgemeister's statement at paragraph 10.6, which included documents relating to the Claimant and search terms such as "dismiss", "redundant" et cetera.
  1. In reply, the Claimant observed that the difficulty with that is that the search Ms Burgemeister referred to covered the wrong dates. It related to the period prior to the Claimant's dismissal, whereas he was seeking disclosure in the period immediately thereafter.
Discussion and Conclusions
  1. It seems clear that the ET intended to order disclosure on this issue. The reasoning, as the Respondent has accepted, does not suggest that the application was being refused (and one can see why it would not be). The ET misunderstood the reference in the table but did not find against the Claimant on the argument. It seems to me that I must respect that. I understand the difficulty now in making clear the Order that I consider the ET must have intended, given the stage now reached in these proceedings and the work that will have to be undertaken. That, however, cannot be said to be the fault of the Claimant (nor of the EAT). The terms of the search seem to me to be proportionate given the issues in this case, and indeed that must be the conclusion that the ET itself reached. For those reasons, I therefore also allow the appeal in this regard.

Published: 12/04/2016 10:07

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