British Aerospace Plc v Green & Ors [1995] EWCA Civ 26 (23 March 1995)

HTML VERSION OF JUDGMENT ____________________ Crown Copyright © LORDJUSTICE WAITE: This appeal concerns the powers of Industrial Tribunals regarding discovery and disclosure of documents when dealing with contested issues of fairness in selection for redundancy. Employers, in what is accepted to have been a genuine situation of redundancy, were called upon to make 530 members redundant out of a total workforce of 7000. The method of selection chosen was to assess the capabilities and experience of the entire workforce, awarding to each member marks according to a predetermined formula assessing eligibility under various criteria common to all participants. The 530 who achieved the lowest score were then dismissed as redundant. In the Industrial Tribunal proceedings that followed, 235 of the dismissed employees claimed that their selection for redundancy had been unfair. It was agreed that out of this large number of applications a selection should be made in the first instance of lead or sample cases, in the hope that their resolution would prove determinative of all or most of the issues in the remainder. A consent order was obtained from the Tribunal Chairman to that effect. The employers disclosed the marks scored by every one of the assessed employees. They also disclosed the assessment forms of all the applicants, so that each could see how he or she had been graded under the various criteria. The applicants contended that it would be essential to the process of nominating sample applications that they should be given discovery of the assessment forms of all employees who had not been dismissed, in order that a comparison could be made of the respective ratings, under each criterion, of those members of the workforce who had been dismissed and those who had been retained. At a preliminary hearing the Industrial Tribunal Chairman granted that discovery. Her order was overturned, on the employers' appeal, by the Employment Appeal Tribunal, from which decision the employees now appeal to this court to reinstate the discovery order. A. THE LEGAL AND PROCEDURAL BACKGROUND (1) The test of fairness It has been accepted from the outset of the unfair dismissal jurisdiction that the concept of fairness, when applied to the selection process for redundancy, is incapable of being expressed in absolute terms. There are no cut and dried formulae and no short cuts. The recognised objectives include the retention within the reduced workforce, once the redundancies have taken effect, of employees with the best potential to keep the business going and avoid the need for further redundancies in future; as well as the need to ensure that qualities of loyalty and long service are recognised and rewarded. These are objectives which are liable to conflict with each other. When they do, it becomes the task of the Industrial Tribunal to determine whether in all the circumstances of each particular case the employers have succeeded in providing a response to the tension between them which comes within the range of reasonableness. The result of applying the terms of S 57(3) of the Employment Protection (Consolidation) Act 1978 to cases where the reason for dismissal was redundancy has been summarised (in a passage frequently approved - with the necessary adjustment of emphasis to take account of the later modification by statute of the burden of proof - in later authority) in Williams v. Compair Maxam [1982] ICR 157 at 161 as follows: ".... there are only two relevant principles of law arising from that subsection. First, that it is not the function of the Industrial Tribunal to decide whether they would have thought it fairer to act in some other way: the question is whether the dismissal lay within the range of conduct which a reasonable employer could have adopted. The second point of law, particularly relevant in the field of dismissal for redundancy, is that the tribunal must be satisfied that it was reasonable to dismiss each of the applicants on the ground of redundancy. It is not enough to show simply that it was reasonable to dismiss an employee; it must be shown that the employer acted reasonably in treating redundancy 'as a sufficient reason for dismissing the employee', i.e. the employee complaining of dismissal. Therefore, if the circumstances of the employer make it inevitable that some employee must be dismissed, it is still necessary to consider the means whereby the applicant was selected to be the employee to be dismissed and the reasonableness of the steps taken by the employer to choose the applicant, rather than some other employee, for dismissal." The Industrial Tribunal must, in short, be satisfied that redundancy selection has been achieved by adopting a fair and reasonable system and applying it fairly and reasonably as between one employee and another; and must judge that question objectively by asking whether the system and its application fall within the range of fairness and reason (regardless of whether they would have chosen to adopt such a system or apply it in that way themselves). (2) The degree of scrutiny required of the Industrial Tribunal Employment law recognises, pragmatically, that an over-minute investigation of the selection process by the tribunal members may run the risk of defeating the purpose which the tribunals were called into being to discharge - namely a swift, informal disposal of disputes arising from redundancy in the workplace. So in general the employer who sets up a system of selection which can reasonably be described as fair and applies it without any overt sign of conduct which mars its fairness will have done all that the law requires of him. The Court of Session expressed that in the words of the Lord President (Lord Emslie) in Buchanan v. Tilcon Ltd [1983] IRLR 417 at 418 in this way: "In the event the appellant, apart from throwing out the suggestion that he might have been victimised because of dislike, merely expressed his concern that others, with even less seniority than he and employed in the same work (labouring) had been kept on. In this situation where no other complaints were made by the appellant all that the respondents had to do was to prove that their method of selection was fair in general terms and that it had been applied reasonably in the case of the appellant by the senior official responsible for taking the decision. As was pointed out by Phillips J in Cox v. Wildt Mellor Bromley Ltd [1978] IRLR 157 it is quite sufficient for an employer in a case such as this to call witnesses of reasonable seniority to explain the circumstances in which the dismissal of an employee came about and it was not necessary to dot every 'i' and to cross every 't' or to anticipate every possible complaint which might be made." (3) Scrutiny in "marking" cases Two recent decisions of the Employment Appeal Tribunal, one in its English and the other in its Scottish jurisdiction, have illustrated this principle at work. In Boal v. Gullick Dobson Ltd EAT 7th June 1994 (unreported) 100 redundancies became inevitable. Pools of employees from which the selection would be made were created on an area basis. The employees in each pool were then individually assessed according to a list of criteria which included productivity, skill, quality of work, attendance, punctuality and sickness records. The manager directly responsible for each employee awarded marks in each category which were then checked by two other managers. The degree of importance to be attached to each criterion was decided by the directors of the employers, not by the managers responsible for the marking. The applicant was one of those selected for redundancy under this system and was given an opportunity to discuss his selection with management. At that meeting he asked for details of the assessments of other employees from his pool who had not been selected, but whom he regarded as more obvious candidates than himself for redundancy. That disclosure was refused, his dismissal went ahead, and he complained to an Industrial Tribunal that the refusal had made his dismissal unfair. On his appeal to the Employment Appeal Tribunal from the dismissal of that complaint, it was held, dismissing the appeal, that a practice of allowing employees selected for redundancy to see the assessments of those employees who had not been so selected would involve, especially in cases where the numbers were large, an impossibly protracted exercise, offensive to commonsense and practicality and threatening to stultify the intended fairness of the whole selection process. In Eaton Ltd v. King [1995] IRLR the applicants were four of 20 employees selected for redundancy by a similar process. One of the complaints was that (although given details of their own marks) they were refused a sight of the marks of others; another was that the supervisors responsible for the markings were insufficiently informed to make fair assessments. These complaints were upheld by the Industrial Tribunal, which was also critical of the fact that the member of senior management called to justify the assessment results was unable to speak of the detailed merits of the assessments made of the applicants by the supervisors who had marked their forms. The Employment Appeal Tribunal held, allowing the appeal, that there was nothing to suggest that the assessment process was carried out otherwise than honestly and reasonably. Their judgment stated: "In fact it appears to us that what the employers did in this case was to set up a good system of selection, reasonably administered. It may very well have been possible to argue about the individual markings of individual employees, but that is a comment which applies as much to the marking of those who were not selected for redundancy as to that of those who were. If the view taken by the Industrial Tribunal were carried to its logical conclusion, there could be no alternative but to require the employer, in every such case, to produce all the evidence bearing upon all the assessments out of which the redundancy decision arose. That seems to us to go far further than is proper." (4) Tribunal procedure (a) Sample cases This has become a well-recognised method of keeping the disposal of multiple claims within bounds, as is illustrated by the decision in this court of Ashmore v. British Coal Corporation 1990 ICR 485. The decision to adopt it in the present case was uncontroversial. (b) Pleading There is no formal system of pleading in the Industrial Tribunals. Each applicant states his complaint in very general terms in the Form ITI, and the employer gives a general response in the form provided for an answer. The system thus allows a good deal of latitude to an applicant in regard to the manner in which and the time at which claims are raised and specific issues joined. (c) Discovery There are no automatic directions under the tribunal procedure for discovery. It has to be given voluntarily or obtained by order. This is regulated by Rule 4(1)(a) of the 1993 Rules which (re-enacting similar rules in force at the date of the hearing in this case) gives an Industrial Tribunal the same powers to order discovery as are to be found in County Court Rule O 14 R 8 (1) which provides that: "On an application under Rules 1, 2, 5 and 5A, the court if satisfied that the discovery .... sought is not necessary, or not necessary at that stage of the action or matter, may dismiss or adjourn the application and shall in any case refuse to make an order if and so far as it is of opinion that the discovery .... is not necessary either for disposing fairly of the action or matter or for the saving of costs." This Rule was recently considered by the Employment Appeal Tribunal in Rolls Royce Motor Cars v. Mair 9th June 1993 (unreported) in a context similar to the present, where a substantial number of redundancies had been achieved through a process of grading and marking. There were 153 applicants claiming that their selection had been unfair, many of whom relied upon criticism of the objectivity of the criteria and/or unfairness in their application. The employers had already disclosed the marks scored by all employees, the individual ratings of the applicants, and the minutes of the Review Group which had applied those markings in working out the final basis for redundancy selection. It was decided to proceed by way of lead cases, and the Industrial Tribunal gave a preliminary direction to that effect, coupled with a direction for exchange of documents - to include on the employers' side their assessments of all employees in the relevant potential pool for selection, showing the score which each had achieved under each criteria. The Employment Appeal Tribunal over-ruled this direction on appeal on grounds stated by Wood J (giving the judgment of the appeal tribunal) at page 13 in these words: ".... we are of the opinion that the learned Chairman erred in failing to isolate the specimen cases and to identify the relevant issues in each case; and in failing to address his mind to the necessity for each limb of discovery at the present stage. We also take the view that the Order made was oppressive and if used as a precedent could exacerbate industrial relations and run counter to the fundamental basis of trust and confidence between an employer and each of his employees - not only those involved in the present litigation." B. THE COURSE OF EVENTS IN THE PRESENT CASE (1) Following a decision by the Government to cancel orders for fighter aircraft, British Aerospace were forced to carry out a redundancy exercise at their "Warton Unit" which comprises three factories at Warton, Preston and Salmesbury. The number of required redundancies was 530. For the purposes of selection for redundancy the workforce (7000 in all) was divided into 21 categories, which were not related exclusively to any one site. The number by which each category was to be reduced was agreed upon. Assessment forms were completed in respect of all employees. The relevant criteria were "Knowledge of work/relevant experience", "Achievement of work output", "Quality and accuracy of work", "Flexibility/Ability to do other work/jobs", "Ability to contribute to effective teamwork", and "Initiative". The possible ratings were "Below acceptable", "minimum acceptable", "Good" and "Outstanding" - carrying marks of 1, 3, 5 and 7 respectively. Extra weighting was to be given to the "Knowledge/experience" and the "Flexibility" criteria. There was provision for each assessment form to be first evaluated by one supervisor and then respectively checked and approved by two others. Every assessment form was marked "In strict confidence: this form must not be photocopied". (2) The completed forms in respect of all employees were analysed individually, so that a points total was arrived at for each employee, and the results were then tabulated within the various categories. Individuals were thus placed in a ranked order - those with the lowest scores being selected for redundancy dismissal. Of the 530 so selected, 234 applied in due course to the Industrial Tribunal complaining of unfair dismissal. The majority gave grounds in their form ITI relying on lack of consultation and unfairness: a small minority relied on various forms of discrimination. Only 13 of the 21 categories were affected by these applications, involving a segment of the workforce numbering about 5000. (3) An informal meeting convened by the Chairman on 25th September 1992 as a "Pre-hearing discussion" and attended by representatives of both sides, considered written proposals by the Trade Union representatives for the selection of sample cases and disclosure of documents. The disclosure sought, so far as relevant, was of: "(c) documents relating to the selection criteria including the advice and training given to those making the selections. (d) all documents relating to the selection of individuals including the assessment of those individuals selected and the assessment of all others in the same selection group." (4) As a result of that meeting the Chairman wrote to the parties confirming the indication she had already given that in her opinion "items (c) and (d) would be necessary for the fair disposal of the proceedings". She also gave the following direction (to which no objection has been taken) in regard to lead cases: "The applicants' representatives will propose which cases are to be heard as sample cases once the [employers'] documents have been produced and matters of inspection have been dealt with." (5) The assessment criteria and the summary of overall rankings by category (with the applicants identified) were disclosed by the employers. They objected, however, to disclosure of the assessment forms of retained employees ("the retained assessments"). There was an attempt to deal with the matter by correspondence (copied to the tribunal), in which the employers objected to production of the retained assessments on the grounds both of confidentiality and of irrelevance. (6) There was then a formal directions hearing at which the issue of discovery of the retained assessments was argued before the Chairman by representatives of two of the Unions concerned on the one side and the employers' solicitor on the other. For reasons already explained, there were no pleadings before the Chairman. She was dependent for a formulation of the prospective issues in the applications upon the oral submissions of the representatives before her. The nature of those submissions appears only briefly from the statement which the Chairman gave on 10th March 1993 for her confirmation of the original direction that the retained assessments must be disclosed. The relevant extract from those reasons reads as follows: "6. I considered first whether disclosure of the assessment forms is necessary for the fair disposal of these proceedings. Mr. Robinson GMB. APEX and Mr. Ralph MSF argued that the forms were relevant and necessary because the redundancy selection procedure had been subjective, inconsistent and unfair; this would appear for a perusal of the forms. They further argued that as the employees had been graded, they had effectively been compared against each other, and in particular the assessor had compared them against an average employee- a composite of other employees. On the issue of confidentiality they referred me to Nasse v. Science Research Council [1979] ICR 921 . They gave an undertaking that the documents would not be used for any purpose other than the Tribunal proceedings. In my opinion these forms have a prima facie prospect of relevance. 7. I then considered the claim of confidentiality and whether I should examine all the forms in order to decide if it was essential to disclose them in the interests of justice. In my opinion whereas the assessment forms may have had a high degree of confidentiality during the redundancy exercise, this degree is very much reduced since the exercise was completed: there is no longer any sense in which disclosure can interfere with management's conduct of this exercise. Furthermore perusal of the one sample form produced by the respondent does not disclose any comment or assessment that now appears to me to be confidential: the comments are not in my opinion intrinsically personal. 8. I consider that the totality of the assessment forms is certainly relevant and material. I have had regard to the decisions of higher courts in particular Science Research Council v. Nasse [1979] ICR 921 and British Railways Board v. Natarajan [1979] ICR 326 which relate to selection, albeit in sex and race discrimination cases. It is accepted that a comparison between the reports on people selected for favourable and unfavourable treatment is a proper test of the fairness of the application of a selection procedure and that such reports should, subject to considerations of oppressive volume, be disclosed. I have therefore considered the number of forms concerned and the number of applicants. The ratio of forms to applicants is in the region of 21 forms to one applicant - a ratio which cannot be said to be oppressive and burdensome. 9. I accordingly affirm the order for inspection of the Redundancy Selection Assessment Forms of those not selected for redundancy but who are in the same selection group as those who were. It should be complied with within 28 days of the date of this decision." It was not suggested that at that stage the employees had formulated the prospective issues at the eventual hearing with any greater specificity than is to be found in the paraphrase given by the Chairman (para 6) of the Union argument that the retained assessments were "relevant and necessary because the redundancy selection procedure had been subjective, inconsistent and unfair; this would appear from a perusal of the forms." C. THE DECISION OF THE EMPLOYMENT APPEAL TRIBUNAL The members of the appeal tribunal were divided. The majority (including the judicial member) regarded the Chairman as having fallen into error in two respects - namely by applying a misconceived analogy between the comparison of results sought in this case and the comparisons required in cases of race or sex discrimination; and by failing to pay due regard to the absence of any clearly ascertained issue to which the disclosure of the retained assessments could be shown to be relevant. Knox J (after citing paragraph 8 of the Chairman's reasons) expressed the majority view in this way: "There is in the majority view a very significant difference in principle between the type of sex and race discrimination case such as those cited above and claims of unfair dismissal on grounds of selection for redundancy. This difference resides in the fact that in the typical race and sex discrimination cases there is involved a positive selection from a limited field of candidates who are often unknown to the applicant and discovery can often be perfectly effectively given of the other candidates' relevant documentation on an anonymous basis. Those features are not present in cases regarding selection for redundancy where those who escape redundancy are known and where discovery of their assessment forms cannot sensibly be effected on an anonymous basis. Moreover there is in principle in the majority view no valid ground for allowing what are called fishing expeditions by departing from the well established principle that the definition of issues should precede discovery." Knox J added that although the majority had reached this view independently, they regarded it as strengthened by the decision in Rolls Royce v. Mair (supra). The view of the minority member was that in the context of the very serious implications of redundancy in times of economic hardship, it would be right to order full discovery of all assessment forms unless it was established that it would impose excessive burdens. The Chairman had found as a fact that the ratio of forms to applicants could not be said to be oppressive and burdensome. That was a finding which bound the appeal tribunal. D. THE ARGUMENTS ON THIS APPEAL Mr. Burke for the appellant applicants based his argument fundamentally, and attractively, on elementary propositions of natural justice and fair play. The employees had made a general complaint of inconsistency or anomaly in the selection process, which they were entitled to make good by pointing to specific instances. They could not do that without access to the retained assessments for the purpose of making a fully informed and properly judged comparison between the attribution of marks under all criteria to the retained employees and the corresponding attribution in the case of those who were selected for redundancy. Mr Hand QC for the employers did not seek to contend that there could never be circumstances in which the retained assessment forms might become discoverable. He accepted that disclosure might be justified in a case where a redundant employee raises the specific allegation that another employee should have been selected under the criteria as properly applied. In such a case, however, so Mr Hand (making his own appeal to considerations of fair play) submitted, it is to be expected that sufficient particulars would be given to enable the employer to know what case he has to meet. It is only once those particulars have been given that the duty to disclose arises. In the present case there has been no specific allegation of that kind. At this very early stage, when discovery is sought solely or primarily for the purpose of deciding which applications are to be chosen as sample cases, it would be wrong to allow the applicants to use discovery as a means of "fishing" for issues additional to those which it is already open to them to plead, with proper specificity, on the material that has been disclosed to them in relation to the overall results and the details of their own gradings. E. CONCLUSION The issues of principle to which this case gives rise have been ably argued in this court by leading counsel eminent in the employment law field. It is right to stress, in fairness to the Chairman though without implying any criticism of those who appeared before her, that at the brief informal hearing at which her directions were given the Chairman did not have the same opportunity of considering the matter in depth. Specifically she did not have the benefit of the thorough review of the case law that was provided for us - a review which included, moreover, authorities which had not been decided or reported by the date of her hearing. That being acknowledged, however, the majority of the Employment Appeal Tribunal was nevertheless entirely right, in my judgment, to over-rule the Chairman's order for discovery of the retained assessment forms. I say that for the following reasons: (1) The use of a marking system of the kind that was adopted in this case has become a well-recognised aid to any fair process of redundancy selection. By itself, of course, it does not render any selection automatically fair; every system has to be examined for its own inherent fairness, judging the criteria employed and the methods of marking in conjunction with any factors relevant to its fair application, including the degree of consultation which accompanied it. One thing, however, is clear: if such a system is to function effectively, its workings are not to be scrutinised officiously. The whole tenor of the authorities to which I have already referred is to show, in both England and Scotland, the courts and tribunals (with substantial contribution from the lay membership of the latter) moving towards a clear recognition that if a graded assessment system is to achieve its purpose it must not be subjected to an over-minute analysis. That applies both at the stage when the system is being actually applied, and also at any later stage when its operation is being called into question before an Industrial Tribunal. To allow otherwise would involve a serious risk that the system itself would lose the respect with which it is at present regarded on both sides of industry, and that tribunal hearings would become hopelessly protracted. There were therefore strong reasons of policy against allowing disclosure of the retained assessments at this stage, and no special circumstances justifying a departure from that policy. (2) The latitude which the tribunal procedure allows to an applicant in regard to the informal expression (and the progressive raising) of issues requires that discovery against the employer should be directed sparingly; and if necessary on a graduated basis - tranche by tranche as particular documents become relevant to any issue as and when it is specifically raised. That gradualist approach is clearly contemplated, and may even have been intended to be encouraged, by the use in CCR O 14 R 8(1) of the phrase "necessary at that stage of the action". The Chairman was therefore required to direct her mind to the question "what discovery is necessary for disposing fairly of the application at the stage which it has reached at present, namely the selection of sample cases?" In answering it she was required to take account of the fact that the application of the system was not attacked in any specific respect, and that there was therefore at that stage no issue to which the retained assessments could be claimed to be relevant. To have forced their disclosure for the purposes of an exercise in comparison designed to provide individual applicants with grounds for specific allegations of anomaly or mistake in particular instances would have done nothing to ease the task in hand - which was limited to the selection of sample cases - and would have run a serious risk of subjecting these multiple applications to procedural chaos. The appeal raised two further topics which can be mentioned shortly. One was confidentiality. On the view I take of this case - that the retained assessments were not in any event discoverable at the present stage of the proceedings on grounds of policy and relevance - that question does not arise. It is sufficient to say that issues of confidentiality always fall to be judged in the context in which they arise in accordance with the guidelines in Science Research Council v. Nasse [1980] AC 1028 at p 1065 et seq. The other was the principle (exemplified by Kumchyk v. Derby City Council [1978] ICR 1116 ) that in the interests of achieving finality as a major objective of the industrial tribunal system, a party will not in general be allowed to argue on appeal a point which was not argued below. It is accepted that the employers did not at any stage before the commencement of argument in the Employment Appeal Tribunal attempt to present the case as one in which it would be premature to be considering any further discovery before the sample cases had been selected. But I do not see that as raising any new point within the Kumchyk principle: the novelty seems to me to lie only in a change of emphasis related to what was all along a major issue in the case - namely that of relevance. I would dismiss the appeal. LORDJUSTICE MILLETT: This appeal raises an important question of principle concerning discovery in a multiple application for unfair dismissal by reason of redundancy. The great majority of the 234 applicants complain that they were unfairly selected for redundancy. The question which will ultimately fall for determination by the Industrial Tribunal is: was the selection which the employer made one which a reasonable employer acting fairly could have made? Criticism of the fairness of the process of selection for redundancy may take either or both of two forms. It may take the form of a challenge to the fairness of the system of selection which the employer adopted, including the criteria for redundancy, safeguards against bias and extent of consultation; or it may take the form of a challenge to the fairness of the manner in which the system was applied in practice. It is for the applicants to make it clear whether they challenge either or both aspects of the selection process, and if so in what respects they claim that the process was unfair. On an application for discovery, the applicant must demonstrate that discovery of the documents of which discovery is sought is necessary for disposing fairly of the action or matter or for the saving of costs: This is true generally of litigation in the County Court. It is equally true of unfair dismissal cases in the Industrial Tribunal: see Science Research Council v. Nasse [1980] AC 1028 , 1089 per Lord Scarman. Unless a document is relevant to some issue in dispute, its disclosure and production cannot be necessary for the fair disposal of the case. As in other litigation, discovery is limited to documents which are relevant to an issue in the case. It is not ordered in order to enable the claimant to discover whether there is an issue which he can raise. Accordingly, an applicant who alleges that the selection process was unfairly applied in practice and who seeks an order for discovery must specify the respect in which he claims that the process was unfairly applied with sufficient particularity to demonstrate the relevance of the material the discovery of which is sought. He is not entitled to say: "The process was unfair: I do not know in what respect it was unfair: I want discovery in order to find out." In the present case the workforce was divided into a number of categories for the purpose of selection for redundancy. The number by which each category was to be reduced was determined. Assessment forms were completed in respect of all employees. These were analysed individually, a points total was arrived at for each employee, and the results were then tabulated so that employees were placed in a ranked order in each category. Those with the lowest scores in each category were selected and dismissed by reason of redundancy. The applicants have been provided with the assessment criteria, copies of their own assessments and a summary of the overall rankings in each category with the applicants (but not the retained or other dismissed employees) identified. They now apply for discovery of the assessment forms of all the other employees. It is clear that these are not relevant to the inherent fairness of the selection process; they can be relevant if at all only to the fairness of the manner in which the process was performed. The applicants told the Industrial Tribunal that disclosure of the forms "was relevant and necessary because the redundancy selection procedure had been subjective, inconsistent and unfair" and that this "would appear from a perusal of the forms". It is not clear to me that the applicants were asserting that the procedure had been unfairly applied as distinct from being inherently unfair; but even if it be assumed in favour of the applicants that they were making this assertion, it was wholly unparticularised. In argument before us counsel for the applicants was unable to formulate any respect in which he alleged that the selection procedure was unfairly applied in practice. It follows in my judgment that he was unable to formulate any issue to which discovery of the documents which he was seeking would be relevant. Counsel for the applicants submitted that without such discovery it was not possible for the applicants to select appropriate sample cases for trial, and that accordingly discovery was necessary for the saving of costs. In my view this submission was a give-away. Sample cases are selected on the basis that they are representative cases the determination of which will dispose of others. It follows that they should be chosen because they raise issues which are common to a number of cases. A party raises an issue by making an allegation which is disputed. Counsel's submission that the applicants cannot select sample cases without further discovery is an admission that they are seeking discovery in order to find out what allegations they can make. Counsel for the applicants submitted that the Employment Appeal Tribunal should not have allowed the employers to object to discovery on the ground of irrelevance since this was a new point of law which had not been taken before the Industrial Tribunal. I share the doubts expressed by this court in Hellyer Bros Ltd. v. McLeod [1987] ICR 526, 564, as to the wisdom of a rule which excludes consideration of a new point of law even if it can be disposed of without injustice to the other party and without recourse to a further hearing below. But the issue of relevance was clearly raised before the Industrial Tribunal in the present case. The arguments were different in the Employment Appeal Tribunal; but the point of law was the same. There is nothing in the objection. That is sufficient to dispose of the appeal, but I wish to make my view clear that documents relating to retained employees are not likely to be relevant in any but the most exceptional circumstances. The question for the Industrial Tribunal, which must be determined separately for each applicant, is whether that applicant was unfairly dismissed, not whether some other employee could have been fairly dismissed. If the applicant can show that he was unfairly dismissed, he will succeed; if he cannot, he will fail. It will not help him to show that by the same criteria some other employee might not have been retained. The Tribunal is not entitled to embark upon a re-assessment exercise. I would endorse the observations of the Employment Appeal Tribunal in Eaton Ltd. v. King [1995] IRLR 75 that it is sufficient for the employer to show that he set up a good system of selection and that it was fairly administered, and that ordinarily there is no need for the employer to justify all the assessments on which the selection for redundancy was based. I too would dismiss the appeal. LORDJUSTICE STUART-SMITH: I agree that this appeal should be dismissed for the reasons given by Waite and Millett LJJ. I only wish to add some general observations. 1. One of the most serious criticisms of our system of civil litigation is its expense and the time that is taken to reach a decision. Expense and delay are themselves often due to excessive and unnecessary documentation. In considering applications for discovery, courts and tribunals should be vigilant to see that the rules relating to discovery of documents are not abused. Only those documents which are relevant and necessary for fairly disposing of the action or matter or for saving costs should be disclosed. Industrial Tribunals are intended to be a cheap, quick and effective means of resolving disputes within their jurisdiction. This purpose will be frustrated unless these restrictions on discovery are borne in mind. It is no answer to suggest, as Mr. Burke QC did, that orders for costs are not normally made in the Industrial Tribunal. The fact is that the costs are borne by the litigants; it is immaterial that the winner cannot recover them from the loser. 2. In the courts the question of relevance is determined by a consideration of the pleadings. In the Industrial Tribunal the pleadings, consisting of the Form ITI and the employer's answer, are often couched in general terms. No doubt it is desirable that there should be a degree of informality. But the disadvantage of this may be that the parties' real case does not emerge at that stage. Nevertheless, these documents must be the starting point for considering what are the issues in the case. There is nothing in the documents in the present case which in any way makes the assessment forms of the other employees who were not dismissed relevant. And it is quite wrong to order discovery on the basis that a case may in future be put in such a way that documents may become relevant. It was not until oral submissions were made to the Chairman that such a case began to emerge: (see the passage in paragraph 6 of the Chairman's decision) - though for my part I do not think this added much to the Form ITI. In my opinion, part of the trouble in this case was due to the fact that the applicant's case was never formulated in writing in such a way as could justify ordering discovery of these documents. If it is to be said that the case goes further than that set out in the Form ITI, or in a situation where there are numerous claims, that such cases go further, then in my view it is highly desirable that such a case should be formulated in writing with proper particularity, before consideration is given to an order for discovery. 3. In cases of mass redundancy in my opinion it will be only in rare and exceptional cases that the assessment forms of other employees not made redundant will be relevant. This is because the Tribunal is not considering whether those employees were unfairly not made redundant, but whether the applicant was unfairly dismissed. It is possible to envisage a case where for example all or the majority of employees in a certain category in one factory were made redundant, but all others, or the great majority, at the other sites were not. This might suggest that the criterion had not been fairly applied in their case. But this is something which will be known to the applicants or their union; and if that is the case, it can be presented with proper particularity. Then, and only then, may it be relevant to look at the assessments of others in a similar category at other sites; but it cannot possibly be relevant to look at all the other assessments of employees in different categories. The truth of the matter here, as the Employment Appeal Tribunal pointed out, is that this was a fishing expedition to see if any case could be discovered. That is what is not permitted. ( Appeal dismissed with costs ) © Crown Copyright BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII