Appeal No. EAT/0424/03/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 August 2003
Judgment delivered on 11 September 2003 

Before
HIS HONOUR JUDGE ANSELL
(SITTING ALONE)

THE CHIEF CONSTABLE OF WEST YORKSHIRE	APPELLANTS

MS E MAGAGNIN	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR D N JONES
(of Counsel)
Instructed By:
West Yorkshire Police Legal Services
Police HQ
Laburnum Road
Wakefield
W Yorks WF1 3QP	
For the Respondent	MR STEVEN LANGTON
(of Counsel)
Instructed By:
Messrs Thompsons
Solicitors
Arundel House
1 Furnival Square
Sheffield S1 4QL	

HIS HONOUR JUDGE ANSELL:

1.	This an appeal from an interlocutory decision of an Employment Tribunal sitting at Leeds before the Chairman, Mr D P Burton (sitting alone) on 2 April who, in a Decision sent to the parties on 14 April 2003, made certain interlocutory orders and, in particular, ordered that the Appellants should give discovery of documentation held by them, in relation to the Respondent’s complaint to the Diversity Unit, and documentation related thereto in connection with the Respondent’s Grievance Procedure.

2	The background facts are that, since September 1995, the Respondent has worked as an Administration Assistant in the Special Branch department of the West Yorkshire Police.  In February 2001, Detective Chief Inspector Gary Baker was appointed the Head of Special Branch and later that year in October, he asked the Respondent to increase her working hours from 30 to 37 per week.  

3	In November he was warned by the Union and/or the Respondent that this amounted to possible sex discrimination and the Respondent alleges that this led to subsequent acts of victimisation.  By May 2002, DCI Baker was recording his concern over the Respondent’s behaviour and attitude and requested that she was removed from the Department.

4	In July the Respondent instituted the first stage of the Appellants’ Grievance Procedure.  The procedure is known as the “Fairness in Action” Grievance Procedure and was managed by the Diversity Unit of the Appellants and, in particular, by Chief Superintendent Collins.

5	The Chairman, in his written Decision, referred to paragraph 5 of their procedure which states as follows:

“As a general rule, cases will be conducted in the strictest confidence.  However, there will be times when this becomes problematic due to the nature of the complaint.
Confidentiality may not be an issue in respect of certain issues raised.  Nevertheless, where it is an issue, the level of confidentiality must be negotiated and agreed between the individuals concerned, and regularly re-visited throughout the procedure.  
Failure to agree a level of confidentiality may result in the procedure being discontinued, however, this should not be permitted to override the ‘overall duty of care’ which is afforded to all staff.”

6	In documents before the Chairman it appeared that, in discussions between the Appellants’ representatives and the Union representative, Mr Brown, the Appellants had requested that the Grievance Procedure should be conducted on a “without prejudice” basis, but Mr Brown said that the Union opposed this and the issue was going to be further discussed with the Appellants’ Solicitor, although the documents do not indicate the results of that discussion.

7	In a Statement before the Chairman from Debbie Woodward, a Personnel Officer employed by the Appellants, she set out that she had had an initial meeting with the Respondent about the Grievance Procedure, when she explained to the Respondent that the procedure would be confidential subject to, for example, a sexual assault that might be disclosed which would have to be further investigated.  She also confirmed that Detective Chief Inspector Jackson had been appointed to investigate under the Grievance Procedure.  When Miss Woodward was interviewed by him, at the commencement of the interview, he explained that the discussions would be on a “without prejudice” basis.

8	In a Statement from Detective Chief Inspector Jackson (now Superintendent) which was not before the Chairman, but which I allowed in as supplementary evidence, Mr Jackson confirmed that his instructions from Chief Superintendent Collins were to ensure that all persons he spoke to were told that the interview was on a “without prejudice” basis and that their comments would not be disclosed to an Employment Tribunal or the Respondent.  He confirmed that he prepared a five page report detailing what he believed, on a balance of probabilities had occurred which he described as a factual, as opposed to a judgmental report.

9	Before the Chairman, the Respondent had sought to disclosure of the documents on the basis that the issues raised within the Grievance Procedure were identical to the issues involved in the Tribunal proceedings, and thus the statement of witnesses interviewed by the Police within the Grievance Procedure may be of relevance to the Tribunal proceedings and possibly contain information that would enable her to advance her own case.

10	The Respondent’s original IT1 had contained a particular complaint that her employers had refused, on 19 July 2002, to follow up the complaint of sex discrimination which in itself she contended was an act of less favourable treatment.  A subsequent letter from her Solicitors on 26 February 2003 clarified that that complaint refers to the failure of the Police to deal with the matter “through discipline and complaints”.  Thus it appears from her IT1 that one of the issues in the case is how the Police dealt with her complaints, post July 2002, and could therefore involve how they dealt with the Grievance Procedure.  It is right to say however, that that issue did not appear to have been specifically identified before the Chairman.

11	On behalf of the Appellants it was argued before the Chairman, firstly that the documents were confidential and secondly, by reason of the fact that the Grievance Procedure was deemed to be “without prejudice” that the documents should therefore not be disclosable.  In particular it was argued that in order for any Grievance Procedure to be effective, persons participating had to be encouraged to provide information to those responsible for administering the procedure and without worrying that the information given might re-surface in other places.  Whilst the Chairman accepted that confidentiality was, in general terms, desirable in such procedures, that had to be balanced against the necessity of doing justice to the Applicant in these proceedings and the Chairman came down firmly on the side of disclosure.

12	As to the issue of whether the documentation could be protected because the Grievance Procedure was expressly “without prejudice” the Chairman found that he could not understand the meaning of “without prejudice” in the context of a Grievance Procedure.  He accepted that if, in the course of such procedure discussions took place with the Applicant or her representative, from which proposals were made to try and resolve the dispute, it would not be appropriate for this documentation relating to those discussions made available to the Tribunal, although he held the documents were still discoverable to the Applicants.  It is agreed that the Chairman was in error insofar as, if documents are protected by privilege they would be neither discoverable to the parties or disclosable within the formal proceedings.

13	Before me, the Appellants do not seek to challenge the Chairman’s view regarding confidentiality, save that they contend that the nature of the confidential disclosures within the Grievance Procedure is very much part of the process leading to a possible resolution of the issues between the parties.  However, they contend that Mr Jackson’s investigation, his report and the other documentation relating to the preparation of that report, is very much part of the Grievance Procedure process which could lead to a resolution of the Respondent’s complaint and is thus part of the overall negotiating process that should be protected by privilege.  Mr Jackson’s role within the procedure includes the following requirements, “Make relevant enquiries with a view to ascertaining the facts”.  “Take all steps necessary and make such personal referrals as may be required to achieve resolution of the issues raised”.

14	In Rush and Tomkins Ltd v GLC [1989] AC 1280, Lord Griffiths, at page 1299, set out the position regarding the “without prejudice” rule as follows:

“The ‘without prejudice’ rule is a rule governing the admissibility of evidence and is founded upon the public policy of encouraging litigants to settle their differences rather than litigate them to a finish.  It is nowhere more clearly expressed than the judgment of Oliver L J in Cutts v Head [1984] Ch. 290, 306:
‘That the rule rests, at least in part, upon public policy is clear from many authorities, and the convenient starting point of the inquiry is the nature of the underlying policy.  It is that parties should be encouraged so far as possible to settle their disputes without resort to litigation and should not be discouraged by the knowledge that anything that is said in the course of such negotiations (and that includes, of course, as much the failure to reply to an offer as an actual reply) may be used to their prejudice in the course of the proceedings.  They should, as it was expressed by Clauson J in Scott Paper Co v Drayton Paper Works Ltd (1927) 44 RPC 151, 156, to be encouraged fully and frankly to put their cards on the table ... .  The public policy justification, in truth, essentially rests on the desirability of preventing statements or offers made in the course of negotiations for settlement being brought before the court of trial as admissions on the question of liability.’
The rule applies to exclude all negotiations generally aimed at settlement whether oral or in writing from being given in evidence.  A competent solicitor will always head any negotiating correspondence ‘without prejudice’ to make clear beyond doubt that in the even [event] of the negotiations being unsuccessful they are not to be referred to at the subsequent trial.  However, the application of the rule is not dependent upon the use of the phrase ‘without prejudice’ and if it is clear from the surrounding circumstances that the parties were seeking to compromise the action, evidence to the content of those negotiations will, as a general rule, not be admissible at the trial and cannot be used to establish an admission or partial admission.  I cannot therefore agree with the Court of Appeal that the problem in the present case should be resolved by a linguistic approach to the meaning of the phrase ‘without prejudice’.  I believe that the question has to be looked at more broadly and resolved by balancing two different public interests namely the public interest in promoting settlements and the public interest in full discovery between parties to litigation.
...  it should not be allowed to whittle down the protection given to the parties to speak freely about all issues in the litigation both factual and legal when seeking compromise and, for the purpose of establishing a base of compromise, admitting certain facts.  If the compromise fails the admission of the facts made for the purpose of the compromise should not be held against the maker of the admission and should therefore not be received in evidence.”

15	In Unilever plc v The Proctor & Gamble Co [1999] 2 All ER 691 Laddie J set out the current view, as follows, at page 700E:

“Although the Civil Procedure Rules are not yet in force, they represent the current policy aimed at making litigation a last resort.  It appears to me that the policy in favour of encouraging pre-litigation settlement is now much stronger than it has been.  Even if it was not so before, now the spread of the without prejudice umbrella should be wide enough to cover all statements made bona fide without prejudice by each party touching upon the strength or weakness of its own and its opponent’s case and any valuation, for whatever reason, it places on its or its opponent’s rights”.

16	Within employment litigation the Courts have adopted a similar approach.  In Independent Research Services Ltd. v Catterall [1993] ICR 1, Knox J, giving the Judgment of this Court set out the position thus:
“The ‘without prejudice’ privilege, if it is correctly so described, is one that is founded on a very clear public policy that it is desirable that parties should be free to try and settle their differences without the fear of everything that they say in the course of negotiations being used in evidence thereafter.”  That seems to us to be something which applies just as much, if not more, to proceedings under the Employment Protection (Consolidation) Act 1978 before industrial tribunals regarding unfair dismissals and similar matters, as it does to proceedings in court. 
Later, he said this, at page 4D:

“The guiding factor is whether the negotiations are genuine”

17	Mr Jones, for the Appellants, also pointed to the fact that the rationale for protecting disclosures and communications made within traditional “without prejudice” material has been extended to other attempts and informally to resolve disputes, such as mediators and conciliators within family disputes - see Pais v Pais [1970] 3 All ER 491 and Henley v Henley [1955] P 202.  He also pointed to the protection given to the ACAS Conciliation Service by Section 18(7) the Employment Tribunals Act 1996 which provides that:

“(7)	Anything communicated to a conciliation officer in connection with the performance of his functions under this section shall not be admissible in evidence in any proceedings before an employment tribunal, except with the consent of the person who communicated it to that officer.”

Mr Jones conceded that the only exceptions to the privilege which he sought for the documentation within the Grievance Procedure, would be (1) where the procedure itself formed part of the allegation of discrimination or (2) where serious matters were disclosed within the procedure, such as criminal offences which the Appellants had a duty to investigate.

18	Mr Langton, for the Respondent, argued that the documentation should not be protected by privilege on the following grounds:

(1)	The Grievance Procedure itself did not refer to being “without prejudice” but only that it would be conducted in the strictest confidence and when the concept of “without prejudice” was introduced into the procedure it was resisted by the Respondent’s Union Representative.

(2)	Unlike mediators or conciliators within matrimonial proceedings, it could not be argued that Mr Jackson was involved in a true negotiating process.  As he conceded in his Statement, he was involved in a factual enquiry seeking to resolve the Respondent’s grievance which might as a bi-product lead to a resolution of her problems.  However, this particular procedure was no different from any other Appeals or Grievance Procedure within the employment context which provided a mechanism for an employee to raise issues which were of concern to them.  It may be that within such procedure, negotiations may be entered into which could lead to a settlement of disputes, but that would be a consequence of the procedure, not its intention or purpose.  To the extent that there may have been negotiations with a view to settling the case, such sections of documentation could be blanked out by the parties so that the Tribunal would not see those parts.  However, this was no reason why the rest of documentation wherein the parties set out their respective cases should not be disclosed in order, for example, that the consistency of their stories could be judged against later material.

(3)	Since it was part of the Respondent’s complaint that her grievance had not been properly handled, post July 2002, it was clearly of relevance to have details before the Tribunal of what transpired as part of the Grievance Procedure.

(4)	Even on the Appellants’ case, they concede that there can be situations where the protection afforded by the privilege can be lifted e.g. if allegations of criminal behaviour were made within the procedure, or whether the procedure itself were part of the discrimination allegation.  He argues as to why the Appellants only made distinctions for those two categories and suggest that the Appellants are adopting a “cherry picking” attitude, seeking to protect their witnesses from possible cross-examination in relation to inconsistencies between statements given within the Grievance Procedure and statements before the Tribunal.

(5)	He contends that, even if privilege were to attach to the documents, there can be circumstances in which that protective veil can be lifted.  In the Unilever case, at paragraph 30, Laddie J set out the position as follows:

“Secondly there are occasions where, even though the parties treated the negotiations as being without prejudice, the court refuses to allow the claim to privilege.  In all such cases there are public policy considerations favouring disclosure which override those encouraging the settlement of disputes.  They are mainly cases in which the without prejudice nature of the discussions is being used to cover some form of reprehensible behaviour of one or both of the parties.  Just as it has been held that the law of confidence cannot be used to restrain the disclosure of iniquitous behaviour and legal professional privilege cannot be used to avoid disclosure of documents showing the commission of a crime or fraud, so too the parties cannot use the without prejudice shield to protect statements of documents from view or subsequent use where there is a sufficient public interest in their disclosure.  In each case it is necessary to balance the conflicting public interests.”

(6)	He argues that the overwhelming public interest would be for the Respondent, in order to pursue her case properly, to have sight of the documents that effectively she created by instigating the Grievance Procedure and that it would deprive her of a fair trial, if she was not allowed to see such evidence.

19	I accept the force of Mr Langton’s submissions and agree with the Chairman’s, albeit brief reasons, on this issue.  I am satisfied that the essence of this procedure was to investigate the Respondent’s complaint and certainly, at the outset, to carry out a fact-finding enquiry which did not involve the “give and take” of negotiations between the parties.  Indeed there is no suggestion from Mr Jackson’s statement that he was involved in that process and, therefore, the procedure cannot, in my view, be categorised in the same way as negotiations between Solicitors leading to the resolution of a civil dispute, or mediation carried out between couples who have separated or divorced, with a view to resolving outstanding issues concerning property or children.  Whilst the labels attach to these discussions are not determinative, I am mindful of the fact that the Respondent’s Union representative was not willing for the label “without prejudice” to be attached to this procedure.  Further, it seems from the IT1 that there may be an issue in relation to how the Respondent’s complaint was dealt with in the summer of 2002, in which case the Appellants concede that the documentation created within the Grievance Procedure would become disclosable.

19	Finally, I would agree with the Respondent’s submissions that, even if privilege did attach to these documents, the importance of a fair trial on these serious issues of discrimination seems to me to be an overwhelming reason to order disclosure in any event.

20	Accordingly, for the reasons stated I would dismiss this Appeal.