United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR J PARKIN (of Counsel) Messrs Lopian Wagner Solicitors 9 St John Street Manchester M3 4DN
For the Respondent	NO APPEARANCE BY OR REPRESENTATION ON BEHALF OF THE RESPONDENT


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal against a decision of an Industrial Tribunal Chairman sitting alone following a hearing on 9 July 1997. The decision was reduced to writing and sent to the parties on 2 September 1997. It concerns the issue as to whether the Tribunal had power to make a Restricted Reporting Order against a company.

It was the Tribunal Chairman's view, as he put it, having considered the provisions of Rule 14 and Section 11 of the Industrial Tribunals Act 1996, the Tribunal did not have power to make an order in relation to a body corporate. The Tribunal was satisfied "on a balance of probabilities" that the purpose of the Rules was designed to protect individuals in relation to allegations of alleged sexual misconduct but did not extend to protect a body corporate.

That decision arose in the context of a complaint brought by Miss Vincent against Respondents, who should not be identified, but I will refer to as "M". Those Respondents are a small company. At the relevant place, that is, where the Applicant was employed, they had 18 employees only, two of whom were male who worked in the same area as the Applicant. The individual in respect of whom a Restricted Reporting Order has been made is the son of the founder of that business. The founder's first and second names form part of the business name of the Limited Company.

The individual, in respect of whom the Restricted Reporting Order has been made, is one of only two Directors of the Company, the other being his mother, and it is obvious that this is a small company and it will be entirely possible for the press, using any due diligence, to be able to identify the name of the person against whom these complaints are made which would effectively subvert the purpose for which the Tribunal has made a Restricted Reporting Order.

In our judgment the learned Chairman was unquestionably wrong in his conclusion that the Industrial Tribunal did not have power to make a Restricted Reporting Order against a body corporate. We are pleased to arrive at that conclusion for reasons which we will give in a moment because otherwise it could lead to absurd consequences, for example, where an individual who deserved the protection of such an order was the sole Director of the Limited Company which bore his own name.

The reason why we are of the view that the Tribunal has jurisdiction stems from normal principles of statutory construction. The Industrial Tribunal has power to make orders pursuant to their rules, which were made pursuant to powers conferred by the Industrial Tribunals Act 1996. Section 11 of that Act enables Industrial Tribunal Procedure Regulations to include provision:

"11(b) for cases involving allegations of sexual misconduct, enabling an industrial tribunal, on the application of any party to proceedings before it or of its own motion, to make a restricted reporting order having effect (if not revoked earlier) until the promulgation of the decision of the tribunal."

The rules which have been made reflect the power conferred by that section. Those rules are to be found in Rule 14 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993.

"14(1) In any case which involves allegations of sexual misconduct the tribunal may at any time before promulgation of its decision in respect of an originating application, either on the application of a party ... or of its own motion, make a restricted reporting order.

(2) The tribunal shall not make a restricted reporting order unless it has given each party an opportunity to advance oral argument at a hearing, if they so wish.

(3) Where a tribunal makes a restricted reporting order -

(a) it shall specify in the order the persons who may not be identified."

It appears to be the view of the Industrial Tribunal Chairman that because the word "persons" was used, it did not include a body corporate. In fact, unless the contrary intention appears, the presumption is, as a result of the application of Sections 5 and 11 of the Interpretation Act 1978 and the Schedule thereto, that the word "person" includes a body of persons corporate or unincorporate.

Accordingly, as a matter of standard statutory construction, unless the context otherwise requires or a contrary intention appears, the word "person" in the Rules is apt to include a body corporate as here. But it goes further than that. If one looks at Section 11(2)(b) of the Industrial Tribunals Act 1996 it provides that:

"(2) If any identifying matter is published or included in a relevant programme in contravention of a restricted reporting order -

(b) in the case of a publication in any other form, [than publication in a newspaper or periodical] the person publishing the matter ...

shall be guilty of an offence."

Subsection (4) says:

"(4) Where an offence under subsection (2) committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of -

(a) a director, ...

he as well as the body corporate is guilty of the offence ..."

It is therefore manifestly clear that when Parliament used the word "person" in Section 11(2)(b) Parliament had in mind the application of the Interpretation Act and that that would include a body corporate. Since the word "person" appears in Section 11(1) it is to be assumed that Parliament was using the word in the same way in the same section.

Accordingly, not only is this not a case where the contrary intention appears, it is a case where it is obvious from the context of the section itself, that Parliament intended that "person" should include a body corporate. That being so, there is no reason to construe the rules in any restricted way. There is nothing in the rules which requires a more restricted construction and we are therefore fully persuaded by Mr Parkin, who has admirably succinctly presented these arguments to us, that the Industrial Tribunal Chairman erred in law. It follows from that that he has not exercised his own discretion in relation to the matter and it therefore falls for us to apply the discretion which he denied to himself.

It seems to us, on the facts of this case, that this is a case where it would be appropriate that a Restricted Reporting Order should be made in relation to the company as well as in relation to the person in respect of whom such an order has already been made. The reason for that is simply that otherwise, the order which the Tribunal has made in relation to the individual could readily be subverted.

It is to be noted that Restricted Reporting Orders apply, and are intended to apply, only whilst the Tribunal proceedings are afoot. It is, as this court has already indicated in the case of A -v- B, an order which is there to prevent the excesses, if there are going to be, of the press or other media whilst the case is proceeding, which might put undue pressure on persons who are involved. Where serious allegations of this sort are made, it is better for all concerned that the Tribunal rule on the matter, and find out where the truth lies before the persons become identified.

Accordingly, when the decision is promulgated by the Industrial Tribunal, the press will be fully entitled to report the names of those who were involved and, indeed, during the course of the proceedings they will be entitled to attend the proceedings, as they will be held in public, and to report, provided they do not breach the Restricted Reporting Order, what takes place at the Industrial Tribunal.

For these reasons we allow the appeal against the decision of the Industrial Tribunal and make a Restricted Reporting Order in respect of the company concerned.

There has been a certain amount of newspaper publicity relating to the individual in respect of whom the Industrial Tribunal made a Restricted Reporting Order. It seemed to us that so long as there is an order relating to him there should be one relating to the company of which he was a director. An application may be made to an Industrial Tribunal at any time that such an order should be lifted. Mr Parkin indicated that there are good arguments to be made as to why the fact that there has been some publicity does not suggest that the Order made by the Tribunal should be lifted. We would like to make it clear that we have not considered this argument or taken it into account in reaching our decision and we are intending to give no indication as to how any such application should be treated.