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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Balfour v Foreign & Commonwealth Office [1993] UKEAT 269_93_0111 (1 November 1993)
URL: http://www.bailii.org/uk/cases/UKEAT/1993/269_93_0111.html
Cite as: [1993] UKEAT 269_93_111, [1993] UKEAT 269_93_0111
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EAT/719/93
At the Tribunal
THE HONOURABLE LORD COULSFIELD
MR D A C LAMBERT
MISS A P VALE
A BALFOUR
THE FOREIGN & COMMONWEALTH OFFICE
Transcript of Proceedings
JUDGMENT
HEARD IN CAMERA
Revised
APPEARANCES
EAT/269/93
For the Appellant MR ROBIN ALLEN
(Of Counsel)
National Council for Civil Liberties
21 Tabard Street
LONDON SE1 4LA
For the Respondents MR C KATKOWSKI
(Of Counsel)
Treasury Solicitors
Queen Anne's Chambers
28 Broadway
LONDON SW1H 9JS
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EAT/719/93
For the Appellants MR C KATKOWSKI
(Of Counsel)
Treasury Solicitors
Queen Anne's Chambers
28 Broadway
LONDON SW1H 9JS
For the Respondent MR ROBIN ALLEN
(Of Counsel)
National Council for Civil Liberties
21 Tabard Street
LONDON SE1 4LA
LORD COULSFIELD: We require to deal with an appeal by the Applicant, Andrew Balfour, from a decision of the South London Industrial Tribunal, dated 12 March 1993, given by the Chairman Mrs T J Mason, sitting alone, on an interlocutory application, and a cross appeal by the Respondents, the Foreign & Commonwealth Office: together with a further appeal by the Foreign & Commonwealth Office from a decision of the same Chairman dated 3rd August 1993, on a similar application. Both appeals concern the extent to which orders for discovery should be made on the application of Mr Balfour. It is convenient to set out, so far as necessary, the relevant background and circumstances, before dealing with the individual appeals. Although, in the end, the issues for decision are relatively limited, the surrounding circumstances do require to be set out at some length. Some of the circumstances referred to are matters which might affect national security. The hearing before us was "in camera" and we have attempted to avoid mentioning anything of a sensitive nature, so far as such matters were drawn to our attention.
The applicant was employed by the Foreign & Commonwealth Office from 1969. In 1985, while stationed in Syria, he issued a visa for travel to the United Kingdom to a person named Hindawi, who was later found to be a terrorist, and who later figured in a notorious incident, involving an attempt to have a bomb carried on to an "El Al" airliner. The applicant was not reprimanded in connection with the issue of the visa to Hindawi and there was nothing irregular in his conduct in that respect. In 1986, he was expelled from Syria as part of a "tit-for-tat" expulsion. Later in 1986, he was posted to Dubai as Vice-Consul and Visa Officer. While in Dubai, the Applicant dealt with the issue of visas for travel to the United Kingdom to Iranian nationals. His work was not criticised and, indeed, was favourably reported upon. His contacts came to include one Mehrdad Ansari Shirazi, an Iranian national (referred to hereafter as Ansari). In the course of meetings with Ansari, in March or April 1989, the Applicant gave him the number of a bank account in the name of the Applicant's brother in law, Mr A R Broomhead, in the United Kingdom. His reason for doing so is a matter in dispute, and some further reference to it will be made later. On 16th April 1989, Ansari applied for a visitor's visa for the United Kingdom. The Applicant, after consulting with another officer, issued the necessary visa. Between about 17th and 19th May 1989 Ansari, through the agency of one of his wives, transferred £5,000 into the bank account of the Applicant's brother in law. On 27th May 1989, two reports were written about the Applicant by the Ambassador and the Post Security Officer in Dubai. These reports referred to an allegation or rumour that there was an excessively close relationship between the Applicant and the Iranian community, with the result that he was open to influence by members of that community. The Applicant was summoned by the Consul General in the late evening of the 27th May 1989, instructed to return to London at once, held overnight and not allowed to see his wife and children. On the following day, he returned to London where he was met by a member of the Foreign & Commonwealth Office Security Department and two Special Branch officers. He was questioned for some hours and in the course of questioning gave the officers a list of all his Iranian contacts, including Ansari. Further interviews took place over the course of the next few days. The Respondents then instituted an inquiry into visas which had been issued by the Applicant. A report was made to the effect that normal procedures appeared to have been followed but further investigations apparently continued thereafter. On 17th August 1989, the Applicant attended at the Foreign Office to see an officer of the Security Department. While there, he was arrested under the Prevention of Terrorism Act and questioned. He was released on 18th August 1989 and returned home to be confronted by journalists from the "Daily Mail". Thereafter wide publicity was given to his arrest and release. The publicity included reference to his earlier role in issuing a visa to Hindawi. On 24th August 1989 Ansari arrived in the United Kingdom. On 6th September 1989, Ansari was arrested and interviewed but he was not held in custody or charged. A further interview took place on 20th September 1989 but again Ansari was not charged. Apparently, thereafter, permission to reside in the United Kingdom or, at least, extended leave to stay was granted to him. On 3rd January 1990 the Applicant was informed that there would be no proceedings against him.
Disciplinary proceedings were then commenced against the Applicant. The first step was an interview with a Mr Heredge which took place on 12th January 1990. The interview is referred to in a letter of that date, and it does not appear that it had any significance other than as a warning of the commencement of disciplinary proceedings. The proceedings were initiated by a complaint by the Chief Clerk of the Foreign & Commonwealth Office dated 16th March 1990. The complaint bore to be based on information contained in the police interviews, and in statements given to the police by a number of witnesses, and dealt with three matters. The first related to a transfer of cash made by the Applicant from Dubai to the United Kingdom through the agency of a Mr Khoury. This head of complaint ultimately led to a reprimand and is not material for the present purposes. The second head of complaint related to the acceptance of minor gifts and was ultimately treated as insignificant. The material complaint was set out in paragraph 2(b) of the letter of 16th March 1990 as follows:
"Mr Balfour approached an Iranian businessman in Dubai with a request to borrow £20,000. The businessman agreed to lend Mr Balfour £5,000. Subsequently £5,000 was paid into Mr Balfour's brother in law's bank account. Mr Balfour subsequently induced his brother in law to write three fictitious letters to the businessman purporting to show that the £5,000 was payment for a transaction between Mr Balfour's brother in law and the Iranian businessman, Mr Mehrdad Ansari Shirazi."
Paragraph 3 of the letter of complaint stated:
"It cannot be proved why these considerable sums of money and gifts were received by Mr Balfour. But their receipt, unreported, and in one instance with an elaborate attempt at concealment amounts, in my view, to breaches of the following diplomatic service regulations:
(a) DSR 8 (General Principles of Conduct) and
(b) (DSR 9) (Acceptance of Gifts and Advantages)".
The letter of complaint proceeded to set out the substance of the material regulations and the respects in which it was alleged that they had been infringed. The relevant police statements and other documents were placed before the Disciplinary Board.
The disciplinary proceedings were somewhat extended. The Disciplinary Board met on 3rd and 4th July 1990 and again on 12th September 1990. Between these two hearings the Applicant wrote, on 17th July 1990, to the then acting Chief Clerk of the Respondents, Mr D J Moss, raising a number of matters including the issue of a visa to Hindawi. The acting Chief Clerk replied on 30th July 1990. His letter included a statement to the effect that he had agreed to see the Applicant on the footing that the Applicant did not wish to raise matters relating to the disciplinary proceedings and therefore that he did not propose to communicate either the letter or the contents of their conversation to the Disciplinary Board.
The decision of the Board was dated 20th September 1990. It records the documents which had been considered and the hearings which had been held and, in addition, records that the Board had written to three witnesses who had signed statements for the police, namely Mr A R Broomhead, Mr Khoury and Ansari and that neither Mr Broomhead nor Ansari had replied, while Mr Khoury had declined, through solicitors, to attend. The decision letter also records that in considering the complaint the Board had been aware from the information provided that a wider inquiry had been carried out in connection with the Prevention of Corruption Act and, as the Applicant informed the Board, the Prevention of Terrorism Act but that the information provided was limited to the charges in the complaint. The Board noted that the charges had been cast in very general terms and proceeded to find certain facts established. These included the following:-
"(v) A sum of £5,000 had been transferred by Mrs Ansari Shirazi from her husband's account to the bank account of Mr A R Broomhead where, the Board was informed, it remained pending resolution of the present issue.
(vi) Three fictitious letters had been written by Mr A R Broomhead to show that the £5,000 was payment for a transaction between Mr Broomhead and Mr Ansari Shirazi. Mr Balfour was aware of the letters and had provided Mr Ansari Shirazi's address."
With regard to the particular complaint in issue, the Board's findings were as follows:-
"In connection with paragraph 2, the Board considered at length the relationship between Mr Balfour and Mr Ansari Shirazi. It noted the common themes running through the signed statements of Mr A R Broomhead and Mr Ansari Shirazi, supported by Farzin Murray Magshoudou and Mr Gerami. The Board considered Mr Balfour's claim that these statements had been obtained under duress. However, there was no evidence of duress and Messrs Broomhead and Ansari Shirazi were given ample opportunity to withdraw or qualify their statement but had not done so. The Board also noted that no invoices had been issued for the £5,000 paid into Mr Broomhead's account; that the payment had been arranged by Mrs Ansari Shirazi from her husband's account; and Mr Balfour had been involved in the production of the three fictitious letters. In these circumstances the Board concluded that on the balance of probability Mr Balfour had not arranged a business connection, as he had suggested, but had obtained the transfer of £5,000 from Mr Ansari Shirazi, an Iranian businessman. The Board therefore agreed Mr Balfour had been instrumental in securing a gift or advantage in the form of money from someone with whom he had had, and was likely to have, dealings in his official capacity. The Board considered that whether or not his brother in law was meant to be the eventual recipient of the money, the latter was a member of his family in the context of DSR 9.2, having regard particularly to the fact recorded in the last sentence of paragraph 5.1 above. None of the exceptions in paragraph 3 were considered relevant."
The reference to paragraph 5.1 relates to the transaction concerning Mr Khoury which had involved the transfer of money to Mr Broomhead's account, from where it had been transferred to Mrs Balfour. The Board went on to consider the question of penalty and, in the course of doing so, observed that they did not consider that the Applicant's explanation, supported by his father in law, that the £5,000 was remitted as a deposit or sign of good faith against a forthcoming order from Mr Ansari Shirazi was credible. However, they also recorded that the information available was incomplete and for that reason their decision had been reached on the balance of probabilities. Nevertheless, the Board reached the conclusion that the Applicant should be dismissed.
Thereafter, the Applicant appealed. The matters considered by the Appeal Board included a letter from Mr A R Broomhead who, however, declined an invitation to appear before the Appeal Board. The Appeal Board reviewed the material before the Disciplinary Board but reached the view that the conclusion of the Disciplinary Board had been correct. The Applicant's dismissal followed on 25th February 1991.
In the meantime, the Applicant had submitted a complaint to an industrial tribunal, on 11th January 1991. As submitted, the complaint contained no statement of the grounds of the application but merely indicated that, because of issues of national security involved in the proceedings, further details would, in due course, be provided. At the hearing before us, we had full amended grounds of application setting out the Applicant's position in detail. In the course of the Industrial Tribunal proceedings requests for discovery were made on behalf of the Applicant, by letters dated 11th June and 5th November 1992. In connection with these requests, Public Interest Immunity Certificates were granted both by the Home Secretary and the Foreign Secretary. These Certificates were the subject of a hearing before an Industrial Tribunal, and a subsequent appeal to the Employment Appeal Tribunal, and are now the subject of an appeal to the Court of Appeal. In the meantime, the Industrial Tribunal was asked to decide whether there should be discovery of items called for in the Applicant's letters above mentioned, in so far as those items were not covered by the Public Interest Immunity Certificates and in so far as they were resisted by the Respondents. The Industrial Tribunal on 10th February 1993 made an order for discovery of certain documents, described in the decision as the class (a) documents. These comprised two of the items called for in the Applicant's letter of 11th June 1992, which are described in the following terms:
"10 The Home Office Immigration file on Mr Mehrdad Ansari Shirazi, born 5.12.1948 in Shiraz, Iran. Home Office, Lunar House, Croydon.
11 All the IM2 visa application forms listed by Mr Ansari in his second interview with Special Branch. These were all returned to London from Dubai by DCI Gardiner in October 1989."
The Industrial Tribunal refused discovery of two further classes of documents, described as class (b) and class (c). Class (b) consisted of items 2 to 9 inclusive of a list annexed to the letter of 11th June 1992, which were in the following terms:
"2 Full unaltered copies of the witness statements prepared by the police.
3 Full notes, minutes, records or other memoranda relating to the questioning of Mr Balfour on 27th May 1989 in the Gulf and on 28th, 29th, 30th and 31st in the United Kingdom.
4 The list referred to by DCI Gardiner on page 26 of the second recorded interview with Mr Balfour.
5 Mr Balfour's letter of 19th March 1990 to Mr Murray in the Personnel Policy Department.
6 All expense claims made by Mr Balfour during his Gulf posting in 1988 and 1989.
7 Mr Balfour's personnel file and office diary and any note recording the assurance of promotion to a higher grade given in January 1990.
8 All correspondence between the Crown Prosecution Service and the FCO relating to his arrest, the inquiries and the subsequent disciplinary charges.
9. Any notes, memoranda or other documents relating to the interview of Mr Balfour by Mr Heredge on 12th January 1990."
Class (c) consisted of a single item included among the items requested in the letter of 5th November 1992, namely any minute taken of the meeting between Mr Balfour and D J Moss held on 17th July 1990.
In the statement of reasons for the decision of 10th February 1993, the Chairman summarises the proceedings against the Applicant, rather more briefly than has been done in the foregoing part of this decision. She then proceeds to outline the cases of the parties. She notes that the Applicant alleges that the reason for the dismissal alleged by the Respondents was not the real reason, while not advancing any positive case as to an alternative reason but putting the Respondents to proof. She further notes that his contention is that the procedure was faulty, the penalty too severe and that the procedure set in motion created an atmosphere prejudicial to him, which was taken into account, while, had the Disciplinary Board known the whole story, it would not have dismissed him. She also summarises the Respondents' position, which was that the reason for the dismissal was the Applicant's misconduct in relation to the transfer of £5,000 and that the proceedings had been fair and that the items discovery of which were sought were irrelevant; the issues to which the Industrial Tribunal will require to apply its mind; and the tests relevant to the question whether or not discovery should be granted. In paragraph 16 of the Reasons for the decision, she proceeds:
"16 In circumstances such as the present case it seems to me that inspection of any document which the person deciding to dismiss did not see is not necessary to dispose of the issues unless it appears that the document relates to a matter which he did in fact take into account but which was not put to the employee or which ought to have been investigated and taken into account because the employers' defence required it. In the first case the document would be both relevant and necessary to the issue of whether the investigation carried out was in accordance with the rules of natural justice and in the second relevant and necessary to the issue of whether the person deciding to dismiss had carried out as much investigation as was reasonable in the circumstances. As regards the first point, the Applicant must be able to point to some evidence that the employer did in fact take into account some matter which was not put. As regards the second point, I reject Mr Allen's submission (on behalf of the Applicant) that generally documents are discoverable if they are necessary to show a whole story without which an employer might not have dismissed. It seems to me that this submission is too wide. Such documents are only relevant and necessary for a tribunal to dispose of the issues if it appears that the employer ought to have made a fuller enquiry than it did in the light of the employee's case put to the employer at the time. Generally on this subject it is well established law that to allow the employee a general licence to fish in the hope of hooking additional grounds of complaint is not permitted.
17 In relation to the reason for dismissal, it is important to note that the present case is not one of those in which the employee has the burden of proving what was in the employers' mind and in which the Court or Tribunal sometimes takes the view that a wider range of particular documents is relevant and necessary to dispose of the issues. Discrimination cases and the automatically unfair reasons may require a different approach. In the instant case the burden of proving the reason for dismissal is on the employer, the employee advances no positive case as to the reason and I think that I should not order disclosure of documents so that he may cast about in the hope of raising some different or motive for dismissal than that alleged by the employer. If it were so, it would mean any attack made on the reason advanced by the employer would require that the employee should inspect all documents which might have a bearing on the issues. That seems to me a classic `fishing' situation."
The Chairman then considers each of the three classes in turn. We shall return to her observations about class (a) in connection with the Respondents' cross appeal. So far as class (b) is concerned she says:
"These documents relate to matters not put before the Disciplinary Board as part of the case against Mr Balfour. On a careful reading of the proceedings, it seems to me that they are irrelevant and unnecessary for the fair disposal of the issues. There is no indication that the Disciplinary Board took into account matters to which the documents (or the excised parts of them) relate. Indeed, the indications are all the other way. There is no indication that the Disciplinary Board ought to have taken their subject matter into account in dealing with the charges made against Mr Balfour. Again the indications are the other way. In my view if these documents are put before the Tribunal, the result will be an obfuscation of what is at bottom a relatively simple case involving relatively simple issues."
With regard to class (c), the Chairman observed that in her view the material was irrelevant and would have clouded the issue before the Board and would also do so if placed before an industrial tribunal.
The second Industrial Tribunal decision, dated 3rd August 1993, was concerned with a file of papers referred as the "Hickman Papers". These relate to the disciplinary treatment of Mr Hickman who, while Ambassador in Chile, was alleged to have made certain profits on the sale of cars. The reason why discovery of these papers was sought was that they might show support for the Applicant's case that he had suffered disparity in treatment by being dismissed, while no disciplinary proceedings had been taken against Mr Hickman. The Hickman Papers were mentioned in the course of the first Industrial Tribunal decision, but at that stage it was thought that agreement might be reached; in fact, however, there was no agreement. At the second hearing, the Respondents argued that the cases were not sufficiently similar to one another to render the Hickman Papers relevant to the appellant's case. The Chairman rejected that argument and ordered discovery of these papers. Before us, the Respondents argued that, although consistency of treatment was a matter which could properly be considered in unfair dismissal cases, the Chairman had erred because the cases were not sufficiently similar, in particular because disciplinary action was not taken against Mr Hickman. It is sufficient for the disposal of the Respondents' appeal against his second decision to say that all the points argued before us were considered by the Chairman, and that there is no ground for thinking that she erred in law or acted unreasonably.
There was no dispute between the parties before us as to the tests to be applied in deciding whether or not discovery should be ordered, and these tests may, for the present purpose be sufficiently summarised by saying that: discovery should be refused if the papers sought are not necessary for disposing fairly of the action or for the saving of costs, but that care must be taken to ensure that, when there is selective or partial discovery, the selection should not be allowed to become misleading by removing the context from the documents which are produced or rendering their interpretation difficult.
It is now necessary to attempt to summarise the main lines of the substantive case which the Applicant seeks to put before the Industrial Tribunal. That case is set out at some length in the amended grounds of application but, in the light of the explanations given to us and the documents available, the main lines of the case can be summarised as follows:
(a) In so far as the Applicant made or maintained contact with Ansari or other Iranian nationals, he did so in the exercise of his ordinary functions or in response to requests for co-operation and assistance emanating directly or indirectly from the United Kingdom Security Services.
(b) The transfer of £5,000 arose from an approach by Ansari for a transaction which the Applicant took to be a genuine business transaction, involving the placing of a printing order with a company or companies managed by the Applicant's father in law and brother in law. The Applicant provided the bank account number to facilitate an advance payment in relation to this transaction, and he did not know that the £5,000 had actually been transferred. If the Applicant went too far in providing the number, that was an error of judgment, not a serious breach of duty: and in so far as he was involved in the writing of fictitious letters, that was a further error of judgment, arising from the pressure put upon him by the investigations and interrogations to which he was subjected.
(c) In assessing his conduct as they did, the Disciplinary Board, and the Appeal Board, relied heavily on evidence given by Ansari who was the only source of information that the money transferred was for the Applicant's benefit and whose credibility should have been regarded as suspect, because it could be inferred from what had taken place that the Respondents had grounds to regard him as a terrorist.
(d) That inference is supported by the history of the dealings between the Respondents and Ansari, including the Respondents' knowledge of the payment made, and the grant of extended leave to remain in the United Kingdom which suggested a degree of knowledge of or contact with Ansari on the part of the Respondents which had not been disclosed to the Applicant.
(e) The circumstances also give ground for the inference that the Respondents were influenced by allegations, against the Applicant, which clearly were in circulation, other than the immediate subjects of the proceedings. The Respondents failed to disclose such allegations to the Applicant, to investigate them and either to put them aside or to show that they had done so. It can also be inferred, or at least suspected, that the information put before the Board, and supplied to the Applicant, had been edited to exclude material which might have helped his case. It follows that the decision to dismiss was not reached in good faith on the grounds on which it purported to be made. This inference is further supported by the fact that a member of the Disciplinary Board had, contrary to assurances given during the proceedings, been the recipient of earlier reports relevant to the issue; and by the incident involving the leakage of information to the "Daily Mail" reporters, which enabled them to approach the Applicant on his release from custody. In addition the circumstances leave room for the inference that the Hindawi incident may also have been a factor influencing the Respondents' approach to the case.
The Respondents' case in reply really amounts to a denial of the Applicant's case. They maintain that the disciplinary proceedings were properly and fairly conducted. In particular, the Respondents contend that, in so far as the Applicant now relies upon the involvement of the Security Services in his contact to Ansari; on the fact that that contact was not strictly a business one or entirely a business one; on the inference of some concealed purpose on the part of the Respondents to secure his dismissal and on the need for further investigation into the case, these issues were not made the subject of complaint by the Applicant during the disciplinary proceedings.
After this, unfortunately somewhat extended, survey of the issues in the case, we can return to deal with the particular classes of documents and the criticisms of the decision of the Industrial Tribunal. Counsel for the Applicants and the Respondents both accepted that an appeal could only succeed if it could be demonstrated that the Chairman had in some respect erred in law. The Appellant's submission was that in the passage from paragraphs 16 and 17 of the decision of 12th March 1993, above quoted, it could be seen that the Chairman had failed to take account of the third branch of the decision in British Home Stores v. Burchell in that she had overlooked the requirement that before a dismissal an employer should make such investigation as was reasonable in the circumstances. This submission was supported by an analysis of some particular expressions used in that passage from the statement of reasons for the decision. In our view, however, that is not the correct approach to the reading of this decision. In our opinion, if paragraphs 16 and 17 are read fairly and as a whole they show that the Industrial Tribunal did not misdirect itself on the material issues in the case and in particular did not overlook the importance of the question whether a reasonable investigation, in the sense of British Home Stores v. Burchell, had been carried out. In particular, there is clear reference to the issue of reasonable investigation in paragraph 16 of the decision. On the other hand, Counsel for the Respondents submitted that, in granting discovery in relation to the class (a) documents, the Industrial Tribunal had fallen into error in treating the visa applications and the immigration file as relevant material. It was submitted that the case against the Applicant was dependent upon the evidence in relation to the transfer of the £5,000 and was supported by the evidence obtained from the Applicant's brother in law. It was emphasised, in the submissions that there were, as mentioned above, a number of points now founded upon by the Applicant which had not figured in his submissions to the disciplinary bodies until, at the earliest, the appeal stage. Again, we do not think that in these respect the Industrial Tribunal fell into error of law, subject to the comments after mentioned. It is not for us at this stage to make a judgment of the credibility of the Applicant or the plausibility of the case which he makes. It is by no means unlikely that a person placed in the position of the Applicant might only come to appreciate which factors were significant in the case against him as time went on and we do not think that the fact that certain matters were not raised before the Disciplinary Board, prevents the Applicant, in the circumstances of this case, from raising them now. The position now is that he alleges that he was unfairly treated in the respects which we have attempted to outline above. It seems to us that that is a case which he is entitled to make, and that he is entitled to discovery of documents necessary for a fair disposal of that case.
In the Respondents' cross-appeal an alternative argument was advanced that the Industrial Tribunal should not have allowed discovery of the class (a) documents without first inspecting them to see whether they contained confidential material which should not be revealed, in accordance with the procedure envisaged in Science Research Council v. Nassé [1980] AC 1028. Counsel for the Applicant conceded that in relation to item 10 included in the class (a) documents such inspection was appropriate. For the Applicant, it was submitted that the procedure laid down in Science Research Council v. Nassé was aimed at the preservation of confidentiality and therefore had no application in a case, like the present, in which the documents, and in particular the visa applications, were documents which had passed across the Applicant's desk and were therefore not confidential so far as he was concerned. It was submitted that that view of the context of the decision in Science Research Council v. Nassé could be seen from the argument, as reported at pp. 1049 and 1052, and it could not be assumed that the decision extended beyond the circumstances there contemplated. It was therefore submitted that inspection of the item 11 documents was unnecessary but it was accepted that if the Science Research Council v. Nassé procedure applied the Industrial Tribunal should have inspected the documents before granting discovery. Both parties accepted that, in the event that we considered that inspection of the documents was necessary we should inspect them ourselves and reach a decision upon them rather than subject parties to the inconvenience of sending them back to the Industrial Tribunal to dispose of this matter.
In our view, the reading of the decision in Science Research Council v. Nassé supra suggested on behalf of the Applicant is too narrow. It is not supported by reference to any particular passages in the speeches in the House of Lords and even if it was assumed in argument that, as the Applicant has submitted, what was in issue was the preservation of confidentiality, it does not, in our view, follow that the fact that a party has already seen documents necessarily in all cases implies that the documents have ceased to be confidential for the purposes of discovery proceedings. Accordingly, even accepting that the information contained in some of the documents in items 10 and 11 may already have been seen by the Applicant; that, notwithstanding discovery, the documents remain confidential until actually used in Court; and, that the Industrial Tribunal hearing might be held "in camera", it still seems to us that visa applications are documents which by their very nature can properly be regarded as confidential and that this is a suitable case for the exercise of a discretion rather than the granting of an outright order for discovery. We have therefore ourselves inspected items 10 and 11. Item 10, as we saw it, contains only documents not covered by the Public Interest Immunity certificates. The remaining documents are, in our view, clearly insignificant and of no value for the proceedings. Item 11 on the other hand contains a number of visa applications. While these applications do contain personal information about the applicants and their spouses, we do not think that they contain material so sensitive or confidential as to require refusal of discovery.
As we have explained, we do not think that the Industrial Tribunal misdirected itself in law as to the material issues in the case or the approach to be taken to it. We have, however, had the benefit of a much more extensive examination of the issues in the application and, more importantly, of the possible significance of certain of the documents of which discovery is sought than was available to the Industrial Tribunal. In the light of that, we have come to the conclusion that there is some inconsistency between, on the one hand, allowing discovery of the class (a) documents and, on the other, refusing discovery of the whole of the class (b) documents. The Industrial Tribunal Chairman, rightly in our view, pointed out that the class (a) documents are necessary to dispose of the issue whether sufficient investigation was made in the light of what the FCO knew of Ansari at the time. We have come to the view that the same can be said of items 2, 3 and 4 of the class (b) documents. These documents also may bear upon what was known about Mr Balfour at the time of the investigation, the role he played in relation to Ansari and the extent of the investigation which was made into him at the time and which he maintains, should have been followed up by the Respondents. In the light of the full explanation of the basis of the Applicant's case which was made to us and which, as we understand the position, was not before the Chairman to the same extent it seems to us that the order should be altered, to allow discovery of these items.
With regard to the remaining items included among the class (b) documents, the position is, as we understand it, that item 5 has been already made available to the Applicant, that the documents contained in item 6 have already been destroyed and that the Respondents do not have the Applicant's office diary. That leaves us to deal with the position of the remaining documents in item 7 and those in items 8 and 9. We see no reason why item 7 should not have been disclosed, subject always to questions of public interest immunity, since the good character and record of an employee is always a relevant factor in considering the appropriateness of dismissal following upon misconduct. On the other hand, we can see no reason why the correspondence included in item 8 should be of any assistance in the decision of the Industrial Tribunal and item 9 appears to us to be wholly unnecessary.
With regard to the class (c) documents, we need only say that we agree entirely with the views expressed by the Chairman.
In the whole circumstances, therefore, we shall allow the appeal to extent of altering the order made by the Industrial Tribunal firstly by providing that the documents included in items 10 and 11 in the list of documents requested on 9th October 1991 should be allowed subject to prior inspection of the documents by the Employment Appeal Tribunal, and that, in the light of our inspection, discovery of item 10, so far as before us, should be refused but discovery of item 11 allowed; and that discovery should also be allowed of the documents requested under items 2, 3, 4 and 7 of the list given in the letter of 11th June 1992.