United Kingdom Employment Appeal Tribunal

BAILII case number: [1993] UKEAT 66_93_0410

Appeal No. EAT/66/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 4th October 1993

Before

HIS HONOUR JUDGE J HULL QC

MR J P M BELL CBE

MS D WARWICK

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CLARKSON HYDE CHARTERED ACCOUNTANTS          APPELLANTS

MISS R CHU          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MS E WYNNE

(Counsel)

Messrs Jeffrey

Green Russell

56 New Bond Street

LONDON

W1 9DG

For the Respondent MR M FRANKLIN

(Representative)

Sutton Racial Equality Council

1 Hill House

Bishopsford Road

Morden

SM4 6BL


 


JUDGE J HULL QC: In this case Miss Rita Chu applied to the Industrial Tribunal making a complaint that she had been unfairly selected for redundancy and that she had been discriminated against on grounds of race. She was first employed by the Respondents, who are Chartered Accountants, on the 1st September 1986 and the date of dismissal is given as the 15th May 1992. She made her complaint on the 7th August 1992, making the allegations which I have mentioned, and there was an appearance entered on the 18th August 1992 in which the Respondents, at great length, sought to justify their action in selecting Miss Chu for redundancy.

There were, apparently, questions administered under Section 65 of The Race Relations Act 1976 and apparently (we have not seen them or the replies either) the Respondents referred to something which they called a "viability report" on which they had had to base the unwelcome decision to dismiss one or more of their employees, including Miss Chu. The viability report may have been to do with the economics of the firm and its need for labour and the questions of which employees should be dispensed with. But that is merely inference, we have not seen the viability report. It being thus referred to in the Respondents' answers, it was on the face of it a relevant document and therefore without obtaining any order for general discovery Miss Chu was entitled to ask to see it. To that request, apparently, the employers said that substantial parts of the document were confidential, in that they related to conditions of service and confidential assessments of other employees; and that they were in any event wholly irrelevant. On those grounds, which of course are common enough, they said they ought not to have to disclose the document. Therefore an application was made to the Chairman of the Tribunal to order discovery. Miss Chu was not content to see an edited document under which those parts which the employers said were relevant were disclosed but other parts were simply covered up.

That is a very familiar situation, which is often seen in Courts and indeed Tribunals. When that arises the Court has first of all to hear what the parties have to say about it. One party, as here Miss Chu, may be able to do no more than assert a belief; or perhaps that party may be able to give grounds for the belief that parts covered up may be relevant or may not be confidential. It may be that without referring to those parts the employers can give clear grounds for saying that they should not to be disclosed. But if there is any difficulty or doubt about that then it becomes the duty of the Chairman or a person appointed by him or the Court to look at those parts which have been covered up and to say whether, in the view of the Court - bearing in mind what has been said and bearing in mind the other parts of the document - any or all of those parts which have been covered up ought in the interests of justice to be disclosed. It is of course a discretionary jurisdiction. Before the learned Chairman of Tribunals, Mr Franklin, who represents Miss Chu simply said "this document has been referred to and we wish to see it." He was of course entitled to say that and perhaps that was all he could say in the circumstances.

The employers were not represented, so the matters which I have referred to were not put before the Chairman and he heard no argument; no assertions of fact; and no averments by the employers. Mr Franklin tells us that the Chairman simply said: well, this document has been referred to and should be disclosed. That was the end of the matter. The employers then applied to the Tribunal to vary its order but that was dealt with in a very summary way, the Chairman remarking that all these matters had been dealt with at the hearing.

It does appear from what we have been told by both sides that these matters had not been dealt with at the hearing and that the Chairman had not exercised his discretion. He had not had the material put before him so that he could exercise his discretion; and it really is, if I may say so with great respect, idle to ask us to exercise any discretion in the matter. Our jurisdiction is not to exercise a discretion for the Tribunal but to decide whether, when a Tribunal exercises its discretion, or when a chairman exercises his discretion, he has done so on a false basis and whether there can be a complaint in law as to the way in which the discretion has been exercised. If it has not been exercised at all, of course, we cannot do that. We refer to what is said in "Harvey on Industrial Relations Law" Volume 4, Section X, paragraph 108, there is a long passage there - I will not read it all out -it relates to the problems which arise in just such a case as this where confidentiality is alleged. As the text makes clear, if the only question is confidentiality then the Tribunal has to exercise a discretion and decide in the interests of justice whether the need for confidentiality outweighs the prima facie right of a party to see a part of a document which is, or may be, material in the interests of justice. The Tribunal then has a balancing exercise to carry out in the interests of justice. But the Tribunal must first judge for itself whether the material is or is not relevant; if it is irrelevant then those parts of the documents do not have to be disclosed.

In the present case the Chairman had no opportunity to consider whether the obliterated parts, the covered up parts, are relevant. He never embarked on the discretionary exercise of deciding whether, if they were in any way relevant, or might be relevant, the need for confidentiality outweighed that in deciding whether justice required discovery. In our view, therefore, there has been an omission here and the Tribunal has not, through its Chairman, exercised its discretion at all. We are not prepared to look at the document; we do not think we would be justified in looking at the document ourselves and trying to exercise the discretion ourselves. The Chairman has not exercised his discretion. The matter must be remitted to him with the request that he should first of all consider any arguments and averments which are made to him on behalf of Miss Chu and on behalf of the employers; secondly, to decide for himself whether he should consider the parts which have been covered up and decide whether they are relevant; and then to consider, in the light of the need for confidentiality, how the matter is to be dealt with. In what way should discovery be given if it is to be given? Should he allow the obliteration of particular names? Should he hold a hearing "in camera"? Should parts only of the obliterated matters be disclosed? All those are matters for the discretion of the Chairman, which, as I say, it appears to us he has not yet exercised, partly perhaps through misunderstanding, partly perhaps because he has not had an opportunity to do so.

So we remit the case to the learned Chairman with a request that he should consider it further in the way which we have indicated.