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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> South London & Maudsley NHS Trust v Dathi [2008] UKEAT 0422_07_1802 (18 February 2008) URL: https://www.bailii.org/uk/cases/UKEAT/2008/0422_07_1802.html Cite as: [2008] IRLR 350, [2008] UKEAT 0422_07_1802, [2008] UKEAT 422_7_1802 |
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At the Tribunal | |
On 31 October 2007 | |
Before
HIS HONOUR JUDGE McMULLEN QC
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR TOBY KEMPSTER (of Counsel) Instructed by Messrs Capsticks Solicitors 77-83 Upper Richmond Road Putney London SW15 2TT: |
For the Respondent | MR ZEESHAN DHAR (of Counsel) Instructed by: Messrs Sternberg Reed Solicitors 12-18 Station Parade Barking Essex IG11 8DN |
SUMMARY
Practice and Procedure
Striking-out/dismissal
Admissibility of evidence
An employment tribunal has no jurisdiction to hear a claim of discrimination and victimisation founded upon a letter from the Respondent's advisers to the Claimant's advisers refusing to disclose a document said to be relevant. Disclosure and preparation of bundles pursuant to case management directions are protected by absolute immunity. So is a response directed to the Tribunal to the Claimant's application for costs. Both letters came into existence for the purpose of the proceedings and in the second case was "akin to a pleading" and thus both attracted absolute immunity. The Claimant's claims based on those two letters were struck out.
.
HIS HONOUR JUDGE McMULLEN QC
Introduction
The facts
The disclosure letter
"We refer to your letter of 22 June 2006 received by fax.
The Joint Bundle we have forwarded to you contains the documents which you provided us with in your letter of 31 March 2006 and which we provided you with in our letter of 3 April 2006 following the CMD requirement to disclose copies of all documents on which the parties intend to rely.
We have attached one additional document i.e. letter to G Collier from C Perez dated 30/8/05 for inclusion in the Joint Bundle. We have not yet received your additional documents, however upon receipt we will incorporate them into the Joint Bundle as requested and prepare a revised index.
We note your request for disclosure of the documentation relating to the investigation into the Claimant's grievance. As you are aware, this investigation has not yet been completed. It is Trust policy not to disclose investigation documentation unless a decision has been taken as to whether there is a case to answer. Under the circumstances we are unable to agree to your request at this point in time."
She then went on to deal with "your other requests for disclosure".
"4. The Claimant relies on the following conduct of the Respondent carried out on the grounds that the Claimant's race and/or religion, as amounting to further acts of victimisation and/or acts contributing to a breach of the said implied term of trust and confidence…
4.9 On or around 23 June 2006 prior to the Tribunal hearing of 4 July 2006 the Respondent deliberately sought to prejudice the Claimant by refusing to disclose interviews with witnesses that clearly supported the Claimant's allegations that Mr Gosnell had made the said remarks set out above."
The costs letter
"We wish to make an application for costs in accordance with the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004, Sch 1 Rule 38 and Rule 40 (2) & (3) on the basis that the Respondents have in conducting the proceedings, acted vexatiously, abusively, disruptively, or otherwise unreasonably, or the conducting of the proceedings by the Respondents has been misconceived.
We confirm that we have forwarded a copy of this letter to the Respondents' legal representative."
"We have received a copy of the Claimant's letter of 22 November 2006 faxed to yourselves yesterday.
It is the intention of the Respondents to resist this application for costs and it is denied that they have in conducting the proceedings acted vexatiously, abusively, disruptively or otherwise unreasonably or the conducting of the proceedings by the Respondents has been misconceived as quoted by the Claimants legal representative.
It is the belief of the [Trust] that they were acting in accordance with the principles of their own grievance procedures both in terms of dealing with grievances in the order in which they are received and in terms of trying to reach a mediated resolution to the issues raised following investigation into the second Respondent's grievance. The [Trust] does not accept the Tribunal's finding that there was a change of tack or that investigation in to the Claimant's grievance had only been commenced as a result of her indicating that she had been advised to make an Employment Tribunal Claim.
The [Trust] does not deny that it was keen to resolve matters through mediation if this were feasible. As the Claimant's grievance was lodged as an addendum to her statement in response to the second Respondent's complaint then this is surely not an unreasonable course to follows
The [Trust] accepts and supports the principle of an employee's right to raise a grievance and to seek resolution through the grievance procedure if resolution through mediation was not feasible. To this end, the [Trust] will claim that it had begun an investigation into the Claimant's grievance. The process has not been completed due to the intervening Employment Tribunal hearing at the request of the Claimant's legal representative.
Had the Claimant been willing to attend a meeting as requested with the Trust then her concerns about mediation and the status of her grievance could have been discussed and a way forward mutually agreed.
The second Respondent, as stated in his evidence, explained that he had lodged his complaint under the Trust's Harassment and Bullying Policy because the descriptions that it gave seemed to fit how he felt after the incident involving the Claimant on 7 July 2005. He also indicated that he would be willing to attend mediation in an endeavour to reach an amicable outcome."
"6.1 Failing to issue the Claimant with an apology for its conduct.
6.2 Refusing to accept the Tribunal's finding that there was a change of tack on the part of the Respondent only after the Claimant had informed the Respondent that she intended to file a complaint with the employment tribunal.
6.3 Continuing to claim that the Respondent acted reasonably in seeking mediation as a means of resolving the Claimant's grievance despite the Tribunal's finding to the contrary.
6.4 Continuing to maintain that the Respondent's investigation of the Claimant's grievance could not be completed due to the intervening employment tribunal hearing, when the tribunal had found that the Respondent has initially rejected the Claimant's grievance by letter of 2nd December 2005."
Discussion and conclusions
"The absolute privilege which covers proceedings in or before a court of justice can be divided into three categories. The first category covers all matters that are done coram judice. This extends to everything that is said in the course of proceedings by judges, parties, counsel and witnesses, and includes the contents of documents put in as evidence. The second covers everything that is done from the inception of the proceedings onwards and extends to all pleadings and other documents brought into existence for the purpose of the proceedings and starting with the writ or other document which institutes the proceedings. The third category is the most difficult of the three to define. It is based on the authority of Watson v M'Ewen, in which the House of Lords held that the privilege attaching to evidence which a witness gives coram judice extended to the prerecognition or proof of that evidence taken by a solicitor. It is immaterial whether the proof is or is not taken in the course of proceedings. In Beresford v White, the privilege was held to attach to what was said in the course of an interview by a solicitor with the person who might or might not be in a position to be a witness on behalf of his client in contemplated proceedings."
Mr Kempster contends that his case falls within Devlin LJ's second category. Mr Dhar "had some difficulty with Devlin LJ's second category" and it was illogical to construe it as covering all documents brought into existence for the purpose of legal proceedings, as items in the third category would already be in the second. He contends it falls into none. But despite putting "everything" and "all documents" into the second category, Devlin LJ was quite clear that without the third category the absolute privilege granted in the two previous categories "might be rendered illusory" (page 260). He went on to say this:
"I do not treat this principle as necessarily limited to the proofs of witnesses. I think it might well cover, for example, instructions given by a party to his solicitor, going beyond matters to which the party could himself depose, for the preparation of a statement of claim or like document."
"… there is no basis for the proposition that the absolute immunity rule only attaches to defamatory statements. As the employment tribunal well described … and as the Employment Appeal Tribunal also found, it attaches to anything said or done by anybody in the course of judicial proceedings whatever the nature of the claim made in respect of such behaviour or statement, except for suits for malicious prosecution and prosecution for perjury and proceedings for contempt of court. This is because the rule is there, not to protect the person whose conduct in court might prompt such a claim, but to protect the integrity of the judicial process and hence the public interest. Given that rationale for the rule, there can be no logical basis for differentiating between different types of claim in its application. The width of its application in this respect has been judicially stated many times, most notably in: Munster v Lamb (1983) 11 QBD 588, CA per Fry LJ at 607-608; Marrinan v Vibart [1963] 1 QB 528, per Sellers LJ at 535 and per Diplock LJ at 538-539."
The two issues in the case were whether disciplinary proceedings in respect of a civilian in the Police Service attracted absolute immunity and whether, even so, claims could be made in an Employment Tribunal of sex discrimination arising out of the police disciplinary proceedings. It was not disputed in the case that Employment Tribunals are judicial proceedings. It was held that the disciplinary proceedings under the Police Regulations were also in that category and thus attracted absolute immunity. And it was held that there is no exception to the absolute immunity rule for claims of sex discrimination. The speech of Lord Hope in Darker was followed, including this:
"This immunity, which is to be regarded as necessary in the interests of the administration of justice and is granted to him as a matter of public policy is shared by all witnesses in regard to the evidence which they give when they are in the witness box. It extends to anything said or done by them in the ordinary course of any proceeding in a Court of Justice. The same immunity is given to the parties, their advocates, jurors and judge. They are all immune from any action that may be brought against them on the ground that things said or done by them in the ordinary course of the proceedings were said or done falsely and maliciously and without reasonable cause…The immunity extends also to claims made against witnesses for things said or done by them in the ordinary course of such proceedings on the grounds of negligence."
The Third Category
Result