Appeal No. UKEAT/0135/07/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 March 2007

Before
HIS HONOUR JUDGE BIRTLES
	(SITTING ALONE)

ARQIVA LTD	APPELLANT

MR R SAGOO	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR JONATHAN COHEN
(Of Counsel)
Instructed by:
Messrs Charles Russell LLP
Solicitors
8-10 New Fetter Lane
London
EC4A 1RS	
For the Respondent	AYOADE ELESINNLA
(Of Counsel)
Instructed by:
Messrs Johnson Lloyd LLP
4 Delta Road
Worcester Park
Surrey
KT4 7HW	

SUMMARY

ET in error in failing to apply correct test under Nasse v Science Research Council [1979] IRLR 465 and applying a test of “relevance” instead.

HIS HONOUR JUDGE BIRTLES

Introduction
1.	This is an expedited Appeal from the decision of an Employment Tribunal Chairman, Mr R Barrowclough, sitting at the Reading Employment Tribunal on Thursday, 6 March 2007.  The parties to the Appeal are Arqiva Ltd, the Appellant who was the Respondent below and Mr R Sagoo, the Respondent here and the Claimant below.  Today the Appellant has been represented by Mr Jonathan Cohen of Counsel and the Respondent by Mr Ayoade Elesinnla of Counsel.  I am grateful to both of them.

2.	The matter is an expedited one.  As I have said the short history is that Mr Sagoo has brought two claims against his former employer.  The first claim is Claim Number 2700528 which was filed in the Employment Tribunal’s office in Reading on 20 February 2006 claims findings of unfair dismissal, declaration of unlawful treatment on the grounds of race and/or religious belief, compensation and appropriate recommendations to prevent such discrimination occurring.  Those allegations are denied in the ET3 for that case.

3.	The second claim is Claim Number 2701632 filed at the Reading Employment Tribunal’s office on 5 July 2006.  That seeks a declaration of unlawful treatment on the grounds of race and/or religion, compensation and appropriate recommendations.  I think it is fair to say that the two claims really arise from the same set of facts.  Again the ET3 denies the claim.  

4.	Both cases were heard at the Reading Tribunal and on the third day, I think, after the Claimant had given evidence the issue of disclosure of a document arose.  The document was produced and seen by all three members of the Tribunal and following a discussion with Counsel it was agreed that the Chairman would hear arguments from Counsel in a private case management discussion in the absence of the parties, the public and indeed the other two lay members of the Tribunal.  Counsel for Mr Sagoo, Mr Elesinnla, was provided with a copy of the disputed document.

The Employment Tribunal Decision
The Material Facts
5.	These are set out in paragraphs 2 – 3:
2.	The claimant raised a grievance on 10 March 2005, making a number of serious allegations against a number of the respondent’s employees, amounting in effect to direct racial discrimination. Mr Bradbury (I interpolate a Human Resources Director) very properly conducted an investigation into these allegations together with Mr Berry (one of the respondent’s directors) in the course of which he interviewed a number of the claimant’s fellow employees concerning those allegations. He lists the employees he spoke to at paragraph 22 of his witness statement. There are eight named individuals, and one further person whose identity is not disclosed due to a request for anonymity on the part of that individual, apparently arising out of an alleged fear of reprisal by the claimant, as is it put in Mr Bradbury’s witness statement. Mr Cohen, on behalf of the respondent, accepts that the statement or record of interview of that unnamed individual (A) was relied upon by, and forms part of the information based upon which Mr Bradbury and Mr Berry dealt with, and indeed dismissed, the claimant’s grievance in July 2005.
3.	Mr Bradbury was due to be called this morning to give evidence in the Full Merits Hearing; but before he was, the issue of disclosure of any statement from, or document relating to A arose. The Tribunal determined that it could not come to any view, even a provisional view, of whether any such document should be disclosed to the claimant without actually seeing the document in question and accordingly a copy of Mr Bradbury’s record of his interview with A duly produced and read by all three members of the Tribunal. We unanimously agreed that on the face of the document alone (which I have now marked as Exhibit R8 for the purposes of these proceedings) there is no apparent reason why it should not be disclosed in the normal way to the claimant. We further indicated to the parties that, if the respondent contended that there were other reasons, not apparent from the face of the document itself, why the document should not be disclosed, then the Full Merits Hearing would have to be adjourned, and that I as the Chairman would hear argument from Counsel in a private Case Management Discussion, in the absence of the parties and in particular the claimant, a copy of Exhibit R8 having been disclosed to the claimants Counsel Mr Elesinnla, who gave appropriate undertakings concerning the confidentiality of the document and its Contents.
5.	There was a brief adjournment during which the lay members of the Tribunal retired, Mr Elesinnla was given a copy of Exhibit R8 to read, and Mr Cohen spoke to A on the phone before this Case Management Discussion was convened.”

The Employment Tribunal Reasons submissions
6.	These are set out in paragraph 6 of the Chairman’s Reasons.  I do not repeat them and they are incorporated into this judgment.  

The Employment Tribunal Reasons Conclusions
7.	These are contained in paragraph 7 of the Chairman’s Reasons.
7.	With respect to Mr Cohen, and having heard Mr Elesinnla’s arguments, which for reasons of time I will not rehearse here, I am not persuaded that the normal practice of disclosure of all documents relied upon by a party should not take place in this case. Having read it, I do not find the decision In Asda Stores Ltd v Thompson and ors as amounting to or establishing a general proposition of law that confidentiality, and indeed documents provided in confidence, must be preserved and upheld by Tribunals. It seems to me that it is a matter for the Tribunal’s discretion in every case; and, as identified by the House of Lords in Science Research Council v Nasse [1979] IRLR 465, of a balancing exercise into which one has to put the various rights and arguments for and against disclosure. The facts of the Asda Stores Ltd case are very different from those with which I am concerned, and the manner in which the relevant document arose in both cases is by no means identical. The document that I am  concerned with here (Exhibit R8) represents a potentially significant part of the grievance process, upon which reliance was placed by Mr Bradbury and Mr Berry in dismissing the claimants grievance, which led to the suspension of the claimant on the disciplinary grounds that he had allegedly brought false and untrue complaints, which in turn apparently led to his resignation. In my judgment it is therefore obviously relevant to the issue of Unfair Dismissal to be determined by this Tribunal in the Full Merits Hearing, irrespective at whether Messrs Berry and Bradbury were identified by the claimant as discriminators. There was also little, If any, evidence to justify the alleged fear of reprisal. Of course the claimant no longer works for the respondent, as A apparently still does, and whilst the claimant may have A’s telephone number there is no evidence he actually knows where A lives. More fundamentally though, there is no evidence of past violence or aggression on the claimant’s part towards colleagues, and I find the suggestion that he “confronted” individuals who criticised him to be overstated, Additionally, if one looks at the document itself, there is little if anything in it with which the claimant is likely to take issue, leading to a possible conflict. The only apparent exception is the suggestion that the claimant approached A concerning the possible bringing of race discrimination claims against the respondent. However, since I am told by Mr Elesinnla that that allegation is already in the public domain as a result of the claim apparently brought against the respondent by Mr Kennedy Mwelma, it seems to me that it is unlikely that that allegation on its own is going to have much of an impact, or lead to any other difficulty.  The claimant, as I am correctly reminded, has rights to a fair trial under Article 6, and in my judgment and in all the circumstances that I have attempted to summarise, those rights outweigh the rights to confidentially of another employee being asked questions in the course of a grievance investigation.  Accordingly in my judgment the document (Exhibit R8) can and should be disclosed to the claimant as part of the general disclosure process, and I so order.”

The Notice of Appeal
8.	The Notice of Appeal has been supplemented by Mr Cohen’s skeleton argument and oral submissions and I will deal with the Notice of Appeal in the way in which Mr Cohen has dealt with it in his oral submissions which I think has somewhat simplified the number of grounds of appeal.

9.	The first ground of appeal is that the Chairman applied the wrong test in deciding to order disclosure of this document.  Before starting with those grounds of appeal I should add two things.  First, I have myself seen the document which appears at the end of the Appeal Bundle and read it.  Second, I am told by Mr Cohen and obviously accept that following the Chairman’s decision and the appeal against it to this Tribunal the Tribunal carried on and has now in fact heard not only the Claimant’s evidence which it had heard before the Chairman gave his decision but also all of the Respondent’s evidence save for the evidence of Mr Bradbury.  The intention is that Mr Bradbury will give evidence on Monday next before the full Tribunal to be followed by closing submissions.

10.	I return to ground One, the wrong test.  I start by looking at what must be the leading judgment in this area of law which is Nasse v The Science Research Council coupled with Vyas v Leyland Cars [1979] IRLR 465, that is a decision of the House of Lords.  It is sufficient for these purposes to refer to the following passages:

First he judgment of Lord Wilberforce at paragraph 13.  He reaches seven conclusions.  I remind myself that part of this case concerned the question of public interest immunity which does not arise in the case I have to decide.  Sub paragraph (1) of paragraph 13 of the judgment is not relevant.

(2)	There is no principle in English law by which documents are protected from discovery by reason of confidentiality alone.  But there is no reason why in the exercise of its discretion towards discovery the Tribunal should not have regard to the fact the documents are confidential and that to order disclosure would involve a breach of confidence.  In the employment field the Tribunal may have regard to the sensitivity of particular types of confidential information and to the extent to which the interests of third parties including their employees of whom confidential reports are being made as well as persons reporting may be affected by disclosure to the interest which both employees and employers may have in preserving the confidentiality of personal reports and to any wider interests which may be seen to exist in preserving the confidentiality the assistance of personal assessment.  

(3)	As a conollary to the above it should be added that relevance alone though a necessary ingredient, does not provide an automatic sufficient test for ordering discovery.  The Tribunal always has a discretion that relevance alone is not enough was in my belief the position automatically taken by Counsel for Mrs Nasse thus entitling the complainant to discovery subject only to protective measures sealing up etc.  This I am unable to accept.  

(4)	The ultimate test for discrimination as in other proceedings is whether discovery is necessary for disposing fairly of the proceedings.  If it is, then discovery must be ordered notwithstanding confidentiality but where the Court is impressed with a need to preserve confidentiality in a particular case it would consider carefully whether the necessary information has been or can be obtained by other means not involving a breach of confidence.  

(5)	In order to reach a conclusion whether discovery is necessary notwithstanding confidentiality the Tribunal should inspect the documents.  It will naturally consider whether justice can be done by special measures such as covering up, substituting anonymous references for specific names or in rare cases hearing in camera.

(6)	The procedure by which this process is to be carried out is one for Tribunals to work out in a manner which will avoid delay in unnecessary applications. 

(7)	The test therefore  I draw from Nasse is that contained in paragraph 13(4) of the judgment of Lord Wilberforce and it is that the ultimate test in discrimination as in other proceedings is whether discovery is necessary for disposing fairly of the proceedings.
 
11.	The Chairman that dealt with this in paragraph 7 of his reasons, transcript pages 5 and 6. At the bottom of page 5 he says this:
“The document that I am concerned with here (Exhibit R8) represents a potentially significant part of the grievance process, upon which reliance was placed by Mr Bradbury and Mr Berry in dismissing the claimants grievance, which led to the suspension of the claimant on the disciplinary grounds that he had allegedly brought false and untrue complaints, which in turn apparently led to his resignation. In my judgment it is therefore obviously relevant to the issue of unfair dismissal to be determined by this Tribunal in the Full Merits Hearing, irrespective at whether Messrs Berry and Bradbury were identified by the claimant as discriminators.”

In my judgment Mr Cohen is right to say that this passage is an error of law.  First, there has been a failure by the Chairman to explain why it is necessary to order disclosure for the fair disposal of the case.  In other words the test of necessity is not the test of relevance.

12.	It is not in my judgment sufficient for the Chairman to refer to the Nasse case itself.  On the face of the passage cited it would appear that he has misunderstood the ratio of the Nasse case.

13.	The second ground of appeal is what Mr Cohen has called balancing factors.  He has referred me to a number of authorities in particular Vent v Axia Wright a decision of the Scottish Employment Appeal Tribunal on 13 September 1999 and in particular at paragraphs 9, 10 and 11 of that judgment and also the case of Asda Stores Ltd v Thompson No 1 [2002] IRLR 245 and the same case No 2 [2004] IRLR 598.  It is not necessary for me in this judgment to set out the facts or indeed passages in the judgment of the different Employment Appeal Tribunals.

14.	Basing himself on those authorities Mr Cohen makes three submissions and says that in exercising its discretion the Chairman first gave no weight to the issue of confidentiality.  He says there is a reference to it in the judgment but no consideration of what if any weight should be given that is different I think from a submission that the Chairman gave some weight to it but not enough which of course would not be an error of law because that is a matter for the Chairman.  Second, Mr Cohen submits that there is no reference in the judgment at all to the public interest in issue which is enabling employers to take statements in confidence from employees who wish to give statements in confidence and on no other basis.  In other words to preserve this confidential relationship between employer and employee and third he says there is no consideration in this judgment of the issue of redaction of the witness statement of employee A.  He did I am satisfied from the note he has read to me of his solicitors’ record of the hearing make a submission on two occasions this about redaction urging that course on the Chairman if he was against him on the main issue of disclosure but the issue in fact is not mentioned at all in the judgment.
 
15.	I am satisfied that albeit the Chairman had confidentiality in mind he does not address directly that issue or ascribe any weight to it at all.  It seems to me that the case he cited does require that.  Second, there is no mention of the public interest of enabling employers to take statements in situation such as this which can only be given on the basis of confidentiality.  In other words with the employee’s expectation that such statements will not be disclosed to an employee who has either brought a grievance or is the subject of disciplinary proceedings.  There is no rule of law I know in disciplinary proceedings where an employer is bound to disclose the names of those who have made statements in disciplinary proceedings for the employer’s use.

16.	I am not persuaded by Mr Cohen’s third point about no consideration of redaction.  It seems to me implicitly in the Chairman’s decision that having decided that the entire document should be disclosed albeit in error of the correct legal principle he was not obliged to go on to consider redaction although sometimes judges do make alternative findings on the basis that there may an error or be found to be an error by a higher court on their main point.  It does not seem to me to be an error of law not to do so.

17.	The third ground of appeal raised by Mr Cohen is that the Chairman has in effect discounted the fear of violence in this case and he bases that on a wrong interpretation of the Asda Stores’s case No 2 and in particular in the judgment of Burton J at paragraph 49 where he said this:

“It is plainly the case, on what we understand of the facts that the allegations of drug taking and violence are serious, and that the fears of witnesses, whether or not justified in the absolute sense, are real, and the concerns of the respondent are real, and the obligations of the respondent have been upheld by this Appeal Tribunal in October 2001.  Of course it is right that the tribunal has the final say, subject to appeal, but the tribunal cannot be in a position to make as informed a judgment as the respondent would be.”

From that passage Mr Cohen says that the Employment Tribunal Chairman erred in law in discounting the fear of violence which employee A had of Mr Sagoo.  I have listened carefully to what both Counsel have said.  I have looked again, re-read in a course of submissions what the Chairman has to say.  I accept Mr Elissinla’s submission that this is essentially a matter for the Tribunal Chairman providing he has looked at the point and been seen to weigh it up.  He is entitled to give it such weight as he thinks fit in this case that is what the Chairman did and I can find that no error in ground three.

18.	However, for the reasons I have already given in my judgment the Tribunal Chairman in this case in conditions which I can well understand has made an error of law.  I there propose to allow the appeal.  In the light of the fact that the Chairman has heard all of the evidence in this case save the evidence of Mr Bradbury sitting with his colleagues and is therefore a great deal more familiar with the factual matrix than I am or could ever be I propose to remit the issue of disclosure to be heard by him on Monday morning next.  I think it would be quite wrong for me to seek to substitute my view of the merits of an order for disclosure when he but not I has heard almost of the evidence in this case.