United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 907_94_3110

Appeal No. EAT/907/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 31 October 1994

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR K M HACK JP

MR S M SPRINGER MBE

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THE POST OFFICE          APPELLANTS

MR D W TIMMINS          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR T BRENNAN

(of Counsel)

The Solicitor

The Post Office

Impact House

2 Edridge Road

Croydon CR9 1PJ

For the Respondent MR D McWILLIAMS

(Regional Secretary)

Union of Communication Workers

1 Clapham Square

Leamington Spa

Warwickshire

CV31 1JH


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal by the Post Office from the unanimous decision of the Industrial Tribunal, held at Sheffield on 28 June 1994. For full reasons notified to the parties on 2 August, the Tribunal rejected the application made by Counsel on behalf of the Post Office that it should sit in private to hear a complaint of unfair dismissal made by Mr Timmins. He was formerly employed by the Post Office as a driver escort in relation to the work of the security delivery branch, Cashco, until his dismissal on 3 December 1993.

The application by the Post Office was made under the 1993 Industrial Tribunals (Constitution of Rules of Procedure) Regulations. The relevant rule is in paragraph 8 of the first schedule. Rule 8(2) provides:

"Any hearing of or in connection with an originating application shall take place in public ..."

There then follows an exception which does not apply in this case. Subrule (3) provides:

"Notwithstanding paragraph (2), a tribunal may sit in private for the purpose of -

(a) ...

(b) hearing evidence from any person which in the opinion of the tribunal is likely to consist of -

(i) ...

(ii) any information which has been communicated to him in confidence, or which he has otherwise obtained in consequence of the confidence reposed in him by another person, or

(iii) information the disclosure of which would cause substantial injury to any undertaking of his or any undertaking in which he works for reasons other than its effect on negotiations with respect to any of the matters mentioned in section 244(1) of the 1992 Act."

The application in this case was to have the whole of the hearing in private. The Tribunal made the comment in paragraph 4 of its decision that the application:

"did not indicate that [it] was limited to any particular witness or particular part of the evidence."

The reason why the Tribunal refused to accede to that application was set out after referring to the nature of the dispute. That was to whether Mr Timmins' dismissal was fair or unfair. The Tribunal referred to the application and the basis on which Counsel put it. The Tribunal refused the application for these reasons:

"3. The Tribunal unanimously takes the view that the importance of Tribunal hearings being in public cannot be overstressed and that hearings in private should only occur in the rarest of circumstances. ...

4. In refusing the application, the Tribunal notes that there is no compulsion upon a Tribunal to sit in private. The word `may' is used in paragraph 8(3) and not the word `shall'. The tribunal accepts that this discretion must be exercised judicially. Counsel argued that in order to convince the Tribunal of the seriousness of this particular breach he might have to lead evidence regarding other precautions and reveal the value of deliveries. The Tribunal believes this to be in Counsel's hands. It does not seem that the Tribunal need be given such a detailed insight into the workings of the respondents' organisation. The applicant's representative, when protesting about the adjournment, indicated that he would not be requiring to reveal anything which did not impinge directly upon this particular matter."

The Tribunal identified the issues, which they regarded as simple, and concluded that:

"The Tribunal does not wish to sit in private on this case and is not of the opinion that information communicated in confidence or which would cause substantial injury to the respondents need be given."

It appears that, at that hearing, the application on behalf of the Post Office was not opposed by the representative of the Applicant.

The Post Office was dissatisfied with the decision and indicated to the Tribunal that there was an intention to appeal. For that reason the application of Mr Timmins was adjourned to a date to be fixed.

On this appeal, supported by helpful skeleton arguments on each side, it was argued by Mr Brennan, on behalf of the Post Office, that the Tribunal had erred in law and that we should allow this appeal. He went further and submitted that this Tribunal should not only review the Industrial Tribunal's decision, but should direct that the hearing of the complaint be held in private. The basis of that submission was that the Tribunal's discretion could properly be exercised only in favour of the application made by the Post Office.

While recognizing that sitting in private as opposed to sitting in public, is a matter of discretion and that the Tribunal has to balance a number of factors in reaching a decision, Mr Brennan submitted that in this case the Tribunal misdirected itself as to the proper construction of the Rules and then exercised its discretion in a perverse manner.

The first point, on misconstruction, is, in our view, a misreading of the Tribunal's decision. Mr Brennan's complaint was that the Tribunal applied the wrong test when they stated that hearings in private should only occur in the "rarest of circumstances". This was not a test in Rule 8(3)(b)(ii) or (iii) nor are there grounds for implying any such qualification of the discretion. This is a misconceived point, because it is clear, from reading the extended reasons as a whole, that the Tribunal were fully aware of the provisions of Rule 8(2), which imposes the obligation to sit in public and of the discretion to sit in private, conferred in the limited circumstances stated in Rule 8(3). The comment of the Tribunal that:

"hearings in private should only occur in the rarest of circumstances"

was an observation, not about the construction of the Rules but about the actual circumstances in which a Tribunal will direct hearings to be held in private. There is nothing wrong with the Tribunal stating, in relation to the exercise of discretion, that it may only be exercised in the rarest of circumstances. The Tribunal's statement to this effect is consistent with similar statements which have been made in the High Court and Court of Appeal about the discretion to hear High Court proceedings in private. Under s.67 of the Supreme Court Act 1981 it is provided that:

"Business of the High Court shall be heard and disposed of in Court ..."

That is the equivalent to Rule 8(2). Then it provides:

"except in so far as it may, under this or any other Act, under rules of court or in accordance with the practice of the court, be dealt with in chambers."

The practice of the Court contains a discretion to hear matters in Chambers or in private.

It has been emphasized in many cases of the highest authority, notably Scott (otherwise Morgan) and Another v Scott [1913] Appeal Cases 417, that the general rule will be that cases are heard in public and that he who wishes a Court to sit in private must satisfy the Court that by nothing short of exclusion of the public can justice be done.

It is implicit in these rules that the Tribunal does not simply accede to the wishes of one or both parties that the hearing should be in private. The effect of a Tribunal sitting in private is that the public who are, in normal circumstances, entitled to attend the hearing of an industrial tribunal, are totally excluded. In deciding whether or not to exclude the public from a hearing, the Tribunal, in the exercise of their discretion, should take into account not only the matters specifically referred to in Rule 8(3)(b), that is, as to the communication of confidential information or whether there is substantial injury to an undertaking by disclosure of it. The Tribunal must also take into account the interests of the public and their entitlement to hear cases brought in the industrial tribunals, unless there are very good reasons for excluding them.

In our view, far from misdirecting itself on a matter of law, the Tribunal correctly took into account, in the exercise of its discretion, the interest of the public in hearings before industrial tribunals. We agree that private hearings should only occur in rare circumstances.

The other respect in which Mr Brennan criticised the Tribunal's hearing was as to the factors taken into account (or not taken into account) in the exercise of the discretion. He submits that the Tribunal wrongly failed to give weight to the right of the Post Office, as employer, to present its case in the best light by calling relevant evidence as it wished, without being hindered by considerations of security and to the employer's inability to control what evidence, comment or argument might be put forward by or on behalf of an employee.

He contended that the Tribunal had given no weight to the possible effect on the Post Office's undertaking of confidential matters being publicly disclosed. It also failed to take account of the fact that Mr Timmins' representative agreed to the application made by the employer on the basis that he had other members to protect.

Finally, it is complained that the Industrial Tribunal wrongly took account of the fact that there was present in the room at the time of the application only one person who was unconnected with the case, and he was unlikely to have close contact with the robbers. That submission refers to a part of the decision, which I have not read out in paragraph 5 of the decision.

We reject Mr Brennan's contention that those complaints justify this Tribunal in interfering with the exercise of the Tribunal's discretion. The discretion of the Tribunal must be exercised judicially. That means that it should take into account relevant matters and it should leave out of account irrelevant matters. The weight to be attached to particular matters is entirely a matter for the Tribunal. We are unable to find in this decision any misdirection by the Tribunal which invalidates the exercise of its discretion.

For those reasons, we shall dismiss the appeal.

We would add two comments: first, the Tribunal made it clear and we make it clear, that the only application which has been made by the Post Office so far is for the whole hearing to be in private. There is nothing to prevent the Post Office from making applications during the course of the hearing that the evidence of particular witnesses or parts of the evidence of particular witnesses, should be heard in private. It would then be for the Post Office to satisfy the Tribunal that the discretion should be exercised in that limited manner. It will, therefore, be open to the Post Office, at the hearing, to make applications of a limited kind.

Secondly, we appreciate the anxiety expressed by Mr McWilliams, who appeared for Mr Timmins. He stated in his skeleton argument and repeated in his oral submissions, that there is concern for the Applicant that, if there is a further application to hear the evidence of one or more persons in private, there is a prospect that that application will be refused and that will carry with it the prospect of a further appeal to this Tribunal, requiring an adjournment. That is obviously a matter of concern. Mr McWilliams and his client wish to get on and have the matter decided on the merits. It is in those circumstances that we have suggested to the parties that the prospect of further disagreement about this can be minimized if they exchange, in advance of the hearing before the Industrial Tribunal, the statements of the evidence which their witnesses propose to give. Mr Brennan was willing that that should be done in relation to two witnesses who, at the moment, he proposes to call. Mr McWilliams was willing that that should be done in relation to the evidence of Mr Timmins. We therefore propose, subject to any submissions on each side about the time-scale, that there should be exchanged at a specified time ahead of the hearing, witness statements. We hope that, in that way, the parties will know in advance to what extent there is disagreement on material facts and, therefore, to what extent it will be necessary to have oral evidence which may go into some of the matters regarded by the Post Office as sensitive which may, therefore, be the subject of further application.

The order we make is that this appeal be dismissed. As we are told that the adjourned hearing of the Tribunal will take place on 25 November, we make an order by consent that each side will exchange its witness statements within 14 days of today.