Case - South London & Maudsley NHS Trust v. Dathi

[2008] IRLR 350, Employment Appeal Tribunal - Toby Kempster

An employment tribunal had no jurisdiction to hear claims of discrimination and victimisation where the claims were founded upon letters from a respondent's legal advisers to a claimant's advisers. The letters had come into existence for the purpose of previous tribunal proceedings and attracted absolute immunity.

 

The appellant former employer (L) appealed against an employment tribunal's dismissal of its objections to a fresh claim made by the respondent (D).

D had successfully brought proceedings against L for discrimination on the grounds of her race and religion. After judgment was awarded in her favour, D made an application for costs against L, and obtained an order for 50 per cent of her costs. She then brought fresh proceedings against L for, among other things, discrimination and victimisation and sought to rely upon two letters which she had received from L's representatives during the previous proceedings. The first letter was written during the disclosure process, when the parties were seeking to agree a bundle of documents for use at the tribunal hearing. In the letter, L refused to disclose documents relating to the investigation into D's grievance. The second letter was written to the tribunal in response to D's application for costs, and set out L's objections to that application.

L submitted that the letters attracted absolute immunity as they arose in the course of the proceedings between the parties.

HELD: (1) It was common ground that employment tribunal proceedings were judicial proceedings, Heath v Commissioner of Police of the Metropolis [2004] EWCA Civ 943, [2005] I.C.R. 329 applied. D accepted that the costs letter came into existence for the purpose of D's application and was akin to a pleading because it set out L's case ahead of the costs hearing. If a witness for L had given evidence in accordance with the costs letter, for example indicating what their belief was, it would have been protected under the first category of privilege set out in Lincoln v Daniels [1962] 1 Q.B. 237. Absolute immunity could not depend upon the physical presence of a witness at a hearing. Since modern litigation required the cards to be face up on the table, a skeleton argument or something akin to a pleading was a necessary precursor to the presentation of argument or evidence on the point. That was precisely what the costs letter was in the instant case. It was protected by absolute immunity within the second category laid out in Lincoln, Lincoln applied. (2) The disclosure letter was not directed to the tribunal and could not really be said to be a pleading, but D accepted that it had come into existence for the purpose of giving effect to the directions set out at the case management discussion. In light of D's concession the point was unarguable. The letter not only came into existence for the purpose of proceedings but was pursuant to a direct order of the tribunal in relation to disclosure and bundle preparation. The disclosure letter fell within the second category in Lincoln and attracted absolute immunity. If it were not excluded by reason of absolute immunity, it would have fallen within the category of reasonable and honest communications between representatives for the purposes of preparing for a trial, which would have been a defence to a victimisation claim, St Helens MBC v Derbyshire [2007] UKHL 16, [2007] 3 All E.R. 81 considered.

Appeal allowed

Counsel for the appellant: Toby Kempster

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