United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	ALAN WILKIE (of Counsel) The Borough Solicitor Southwark Council South House 30/32 Peckham Road London SE5 8UB
For the Respondent	ROBIN ALLEN (Queen's Counsel) and MATTHEW RYDER (of Counsel) Messrs J R Jones Solicitors 56a The Mall Ealing London W5 3YA


 


JUDGE PETER CLARK: This case raises an issue as to the proper application of the doctrine of Public Interest Immunity ["P.I.I."] to an application for discovery and inspection of documents in the possession of the London Borough of Southwark ["Southwark"] in the course of Industrial Tribunal proceedings brought by its former employee, Mrs Savona, under the provisions of the Race Relations Act 1976 ["the 1976 Act"].

Background

Mrs Savona, the Respondent to these appeals, commenced employment with Southwark in about April 1992 as a support officer scale 4 in the Early Years Section of its Education Department. She performed clerical and administrative tasks in relation to the registration of child minders.

She alleged that throughout her employment she was treated unfavourably on the grounds of her race and/or colour in circumstances amounting to direct unlawful discrimination contrary to section 1(1) (a) of the 1976 Act. Particulars of various incidents complained of were set out in her first originating application presented on 26th November 1993 (Case No. 61481/93). She further complained of victimisation contrary to section 2 of the 1976 Act, arising out of an incident in October 1993 when her child sustained accidental injury. She claimed that she had been subjected to a detriment under section 4(2)(c) of the Act.

On 23rd September 1993 a meeting had taken place between the respondent, a member of Southwark's Race Equality Unit, Patrick Reynolds, and her line managers Bonnie Ure and Gill Scholes. That meeting failed to resolve the issues raised by the respondent, hence her complaint to the Industrial Tribunal.

On 3rd December 1993 the respondent resigned from her employment. She presented a further complaint to the Industrial Tribunal ["the second complaint"] (Case No 43483/94) on 26th July 1994, alleging that she had been discriminated against and/or victimised on the grounds of her race by reason of her treatment by Southwark in connection with the incident concerning the injury to her child, leading her to feel forced to terminate her employment, whereby, we infer, it is said that she was dismissed contrary to section 4(2)(c) of the Act.

In due course the two complaints were consolidated and listed for hearing on 26th-29th- June 1995.

On 31st May 1995, in the course of the Industrial Tribunal proceedings in the London (South) Industrial Tribunal, the respondent's solicitors wrote to the Regional Office seeking an order for discovery of six listed categories of documents against Southwark. The relevant category for our purposes was identified as:

"3. Social Services files on our client's child Eli-Rose."

["the Social Services file"].

The respondent's solicitors went on to claim that those documents were relevant to the allegation pleaded in paragraph 13 of the first complaint, which reads:

"13. While I was on sick leave I went with my baby to visit my husband in Scotland. While we were there the baby was scalded in an accident and was immediately hospitalised in Edinburgh. When we returned to London the baby went into St Thomas' Hospital. My child minder Sheila Robson was a great help to me and came up to the hospital and my house to help look after the baby. I continued to pay her in the normal way. It now seems that Andrea Murray my line manager who is on maternity leave has a friend in my street so everyone at work got to know about my baby's accident. On 5th October 1993 Linda Osborne one of the Area Coordinators and John Warren a registration officer visited my minder at home. Mrs Osborne spoke to my minder Sheila Robson in a curt and intimidating way and upset my daughter. Mrs Osborne made various allegations in the course of the meeting about my fitness as a parent. She also said my child minder was inexperienced and incapable of dealing with the case. She said that as the council assisted me to pay her she should only be doing this in her own home. They were insinuating that my daughter's injuries were not accidental. They said they had rung St Thomas' Hospital. When I heard all this I was terribly upset as I felt that the harassment at my place of work had been carried over into my private life and that the people at work had nothing to do with the way my child was minded were using baby's accident as an excuse to further harass me. ... I consider that I have been victimised under the Race Relations Act because of the complaints I have made."

Southwark's response to that allegation is contained in paragraph 16 of their Notice of Appearance to the first complaint in these terms:

16. Paragraph 13 - Injury to the Applicant's Child

16.1 The applicant resides in the London Borough of Southwark. At all relevant times she had a childminder who was registered by the London Borough of Southwark. The registrations of the childminder would have been carried out by the Early Years Section, a Section for which the applicant worked. The respondents are required by the Children Act 1989 to only register those who are considered to be fit persons. As part of its responsibilities, the Early Years Section is charged with the duty of ensuring that child protection procedures are operated according to the requirements of the Area Child Protection Committee. The Early Years Section assesses both Council employees and members of the public for admission to Council day care for assistance with childminding fees (subvention). The applicant resides in the Borough, and as a resident applied for consideration for assistance with her childminding fees on her return to work in April 1993. That was granted.

16.2 On October 4 1993, information was received anonymously in the Early Years Office regarding an alleged injury to the applicant's child placed with a Southwark childminder. It is the practice of that Section to inspect all allegations of concern to young children, whether anonymous or not.

16.3 Officers of the Department carried out initial inquiries under the Child Protection Procedures and then referred the matter, as is required, to the Area Social Services Office Duty Team. Further inquiries were made by the Social Services Department as a result of which no further action was felt to be needed.

16.4 Under the Child Protection Procedures, the initial inquiries are of a confidential nature and Officers of the Department advised the childminder that she should not comment on the issue to the applicant. The childminder appears not to have heeded this advice and has in fact admitted that she informed the applicant.

16.5 Under the Child Protection Procedures, any one undertaking initial inquiries in child protection matters is not able to inform the parent of the action they are engaged in. As the case was not subsequently pursued the parent would not have been informed by any Officer of the Council.

16.6 At no time was this procedure related in any way to the applicant's employment status with the Council. It is the procedure in operation in relation to any child placed with a childminder registered with the London Borough of Southwark."

By letter dated 6th June 1995 the tribunal order production, inter alia, of the Social Services file on or before 20th June 1995.

On 12th June 1995 Southwark wrote to the Industrial Tribunal seeking a variation of the order whereby they would not be required to produce the Social Services file for inspection on the grounds, inter alia, that:

"The contents of the file could adversely affect the interests of a third party."

We take that to be a claim for P.I.I..

By letter dated 14th June 1995 a Chairman of Industrial Tribunals refused to vary the original order for production, which was confirmed ["the second order"]. That decision was reached without a hearing inter partes.

Southwark appealed the second order to this tribunal by Notice dated 19th June 1995 (EAT/606/95) ["the first appeal"].

On 22nd June 1995 a division of this appeal tribunal presided over by Mummery J ordered a stay of the second order pending the hearing before the Industrial Tribunal fixed for 26th June 1995. On 7th July 1995, following that Industrial Tribunal hearing, Mummery J directed that the first appeal be listed together with the prospective second appeal against the order made by the tribunal following the hearing. That second appeal is designated EAT/606/95.

It is accepted by Mr Wilkie QC on behalf of Southwark that the first appeal is effectively rendered academic by the second appeal. What we must consider is whether the order made by the tribunal following the hearing on 26th-27th June 1995 is wrong in law. We shall refer to that order and the Industrial Tribunal's extended reasons therefor dated 7th July 1995 ["the reasons"] as "the substantive decision".

The substantive decision

Before the Industrial Tribunal the respondent abandoned her complaints under section 1(1)(a) and proceeded on the basis of the victimisation claim under section 2 of the 1976 Act. The tribunal then went on to deal with the question of discovery. The respondent's case that an order for inspection of the Social Services file was appropriate was summarised by the Industrial Tribunal at paragraph 3 of the reasons in this way:

"(a) the allegation had originally been made by a Line Manager, not because she believed that there had been any child abuse but because the Applicant had made complaints of race discrimination;

(b) the complaint was investigated improperly by the Education Department for whom she worked when it should have been referred to the Social Services Department, again because of her complaints of race discrimination; and

(c) The Education Department subsequently referred the complaint to the Social Services Department in circumstances where there was no justifiable suspicion of child abuse, for the same reasons as outlined above."

The Industrial Tribunal first held that it had jurisdiction to entertain the respondent's allegation of victimisation. Next, it accepted that the Social Services file was relevant to the allegation of victimisation; further it found that discovery and inspection of the file was necessary for the fair disposal of the proceedings. None of the these findings is challenged on appeal. Finally it turned to the question of P.I.I., with which the appeal is concerned.

The Tribunal's reasoning

This is set out at paragraphs 16-20 of the reasons. We should record that, without objection from the parties, the Industrial Tribunal read the Social Services file before adjudicating on the question of discovery. Similarly, we have ourselves read the file, without objection by the parties. With both foresight and now hindsight we would have felt unable properly to consider this appeal without having done so.

The tribunal drew on the principles set out in D v NSPCC [1978] AC 171. They concluded from that case that the purpose of P.I.I. doctrine in the present context, was to protect the anonymity of members of the public who gave information to those responsible for investigating allegations of neglect or ill-treatment of children. In this case the tribunal was concerned with the identity of two people, whom we shall refer to as person A and person B. They express their judgment in paragraph 19 of the reasons as follows:

"19. The Tribunal read the documents concerned. It was noted that one of the documents suggests that there were two informants, that is to say, two people who suspected that there had been abuse. However, one of those people is clearly shown from the supporting documentation not to have made an allegation against the Applicant that she had abused her child or had acted in any way improperly to her child. That person would not, therefore, require protection. The other person named in the documentation is an officer within the local authority who was involved in the investigation and who referred the matter to the Social Services Department. However, having regard to what Lord Diplock had said, the Tribunal were satisfied that public interest immunity is designed to protect the identity of members of the public who made the initial complaint. The Tribunal were satisfied that the officer referred to did not fall within that category."

Accordingly the tribunal found that there was no danger, of the type envisaged by the P.I.I. doctrine, present in this case. Discovery and inspection of the Social Services file was ordered, subject to appeal.

The Appeal

Mr Wilkie correctly referred us to the statutory obligation placed on local authorities, including Southwark, to investigate circumstances where it had reasonable cause to suspect that a child who lives in its area is suffering or is likely to suffer significant harm, and the authority is directed to make such enquiries as it considers necessary to enable it to decide whether any action should be taken to safeguard or promote the child's welfare. Children Act 1989 section 47(1). When conducting those enquiries, it shall be the duty of, inter alia, any local education authority to assist in such enquiries. Section 47(9) and (11)(b).

We were referred to passages in the speeches of Lord Diplock and Lord Hailsham in D v NSPCC in support of the submission that the tribunal fell into error in two respects in paragraph 19 of the reasons;

(1) It wrongly held that the doctrine did not apply to persons A and B, and

(2) It failed to carry out a balancing act between the public interest in preserving the anonymity of persons giving information to those responsible for investigating allegations of neglect or abuse and the public interest in a judicial tribunal required to adjudicate upon an issue in respect of which the information is relevant. per Lord Diplock. 218E.

He further developed that submission in relation to persons A and B. As to person A, he submitted that it is nothing to the point that that person had not made an allegation of ill-treatment of the child. It is sufficient that person A had provided information in the course of a relevant enquiry to fall within the category of persons covered by the doctrine. As to person B, he accepts that if that person was part of the investigation no question of P.I.I. arises. However, merely because that person is employed by Southwark does not take him or her outside the category of members of the public with whom the doctrine is concerned.

In response, Mr Allen QC, without having had sight of the file, posed this telling question; does disclosure of the file run the risk that the flow of information about child abuse to local authorities will or might be prejudiced?

He submits that D v NSPCC is concerned with allegations of serious abuse, not mere information. The doctrine in the present context is designed to achieve three purposes;

(1) to protect children, by ensuring the free flow of information about cases of child neglect or abuse.

(2) to protect informants, living in the local community, who will only come forward with allegations of abuse under the cloak of anonymity.

(3) to enable local authorities, in this case, to carry out their duty to protect children.

As to person A, not having seen the file, Mr Allen would accept a limitation on inspection by concealing that person's identity. As to person B, he submits that as an officer of Southwark that person is not a member of the public and there is no public interest which requires that the confidentiality of that person be protected.

Conclusion

We would not presume to lay down universally applicable principles in this case. That has been done by the House of Lords. Our task is to apply the principles as we understand them to the facts of this case in order to fulfil our function which is to say whether or not the tribunal has erred in law.

As to person A, we accept the approach of tribunal. In so doing we cannot accept the broad submission advanced by Mr Allen. The principle emerging from D v NSPCC is that where information is provided by persons to the relevant authority, either by way of an allegation which sets in train an enquiry, or during the course of collecting information within such an enquiry, the confidentiality of that person should be protected. However, where on the facts, as we find the Industrial Tribunal were entitled to conclude in this case, no question of confidentiality arose in relation to person A, the question of P.I.I. simply does not arise.

As to person B, we are again satisfied that the tribunal was entitled to conclude that that person was taking part in the investigation. Accordingly, in light of the concession quite properly made by Mr Wilkie in our view, again no question of P.I.I. arises.

Having reached these conclusions in relation to the individuals concerned, we have tested the matter in the way described by Lord Woolf MR in R v Chief Constable of the West Midlands Police ex.p. Wiley [1995] IAC 274, 290A where he said:

"The House having inspected the documents came to the conclusion that they contained nothing which would be in any way prejudicial to the public interest and they should be disclosed."

We have followed the same course in this case and reached the same conclusion.

Mr Allen, without sight of the Social Services file, was prepared if necessary to limit inspection so as to conceal the identity of person A. Having ourselves read the file we do not regard that step as necessary. Accordingly we shall dismiss the appeal and uphold the substantive decision of the Industrial Tribunal in its entirety.

We would make one final observation. Mr Wilkie made it clear, and we accept, that his clients were not taking the P.I.I. point in order to secure a tactical advantage in the litigation. They did so in the public interest. Having done so, and the matter now having been adjudicated upon by this tribunal, it seems to us that their public duty is discharged and this complaint of race discrimination, now three years old, can proceed at last to a hearing on its merits. However, as we indicated at the close of argument, we shall suspend the operation of our order until the time for applying for leave to appeal has expired. If leave is sought, the order remains inoperative until that application has been determined.