United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS YVETTE GREEN (of Counsel) Messrs Russell Jones & Walker Solicitors Swinton House 324 Gray's Inn Road London WC1X 8DH
For the first Respondent For the second Respondent	MISS LOUISE VARTY (of Counsel) Instructed by: Mr D Morgan Leicestershire County Council Legal Services Department County Hall Glenfield Leicestershire LE3 8RP THE SECOND RESPONDENT NEITHER PRESENT NOR REPRESENTED


 


JUDGE PETER CLARK: This is an interlocutory appeal by the applicant before the Leicester Industrial Tribunal against an order made a Chairman, Mr J A Threlfall, sitting alone on 7th January 1998, refusing her application for specific discovery.

Background

Between 12th August 1995 and 31st January 1997 the applicant was a serving police constable in the Leicestershire Constabulary. By an Originating Application dated 16th January 1997 she brought a complaint of unlawful sex discrimination against the first respondent, the Chief Constable, and the second respondent, a male officer, PC Whale. There has been no application for a restricted reporting order.

The nature of her case is that she was subjected to acts of sexual harassment by the second respondent, for whose acts the first respondent was vicariously liable; and that the first respondent failed to take adequate steps in relation to complaints which she made about her treatment by the second respondent. In response, the first respondent makes no admissions as to the allegations made against the second respondent, which he denies; and denies any failure to take adequate steps to investigate the applicant's complaints. Further, the first respondent relies upon the statutory defence under s.41(3) of the Sex Discrimination Act 1975, namely that he took all reasonably practicable steps to prevent the second respondent from doing the acts of which the applicant complains.

In the voluntary particulars of her claim, served by the applicant on 7th July 1997, she pleads that on 3rd October 1996 she outlined a number of incidents of harassment, without identifying the second respondent, to Police Sergeant Martin, the Equal Opportunities Adviser. On 23rd October she spoke to Paula Bennett, whom she then saw with Chief Inspector Lowe on 25th November. On 12th December 1996 she lodged a formal complaint with Chief Inspector Lowe and on 31st December she tendered her resignation from the Force.

Discovery

Following the applicant's formal complaint an investigation was carried out by a senior officer and completed after her employment had terminated. He interviewed over 60 witnesses, taking witness statements from each. All of these statements have been produced to the applicant, and are listed in a list of documents served by the first respondent. The investigating officer produced a report, following his enquiry. Privilege is claimed in respect of that report. Two issues arise; first, it is said that the production of the report is not necessary for the fair disposal of the proceedings; secondly, it is said that it falls within a class of documents to which Public Interest Immunity ["PII"] attaches. It is in respect of that report that the application for specific discovery and inspection was made.

The Tribunal order

In his written reasons the Chairman identified the two issues before him, those of necessity and PII. He decided both in favour of the respondents. As to the first issue he said this at paragraph 5 of his reasons:

"5. The first issue I have considered is the question of necessity of producing the investigating officer's report for the purposes of the Industrial Tribunal's proceedings. All the documents and statements on which the report is based have been discovered to the applicant. The report itself summarises those statements and documents, draw conclusions and makes recommendations. I accept the respondents submission that disclosure of the report itself will advance the case of neither party for the benefit of the Tribunal. The conclusions of the investigating officer are irrelevant to the Industrial Tribunal. The Tribunal will have to make its own mind up on the information available to the investigating officer and any other evidence and his opinion will not advance either case. The recommendations in his report are not an issue before the Tribunal. Although the investigation started before the applicant submitted her application to the Tribunal, it is clear that the report itself and any recommendations in it were not in being when the application was submitted. As for the conclusions, it is a matter for the Tribunal to decide what, if any, recommendations should be made. I take account of the point put forward by Mr Hutchinson that originally the respondent disclosed the report in its list of documents but simply claimed public interest immunity. However, I am not satisfied that the report itself is a document which is necessary to deal with the issues in the case."

The Appeal

Ms Genn, on behalf of the applicant, accepts that she must first show that the Chairman erred in law in finding that discovery and inspection of the report was not necessary for the fair disposal of the proceedings. (Industrial Tribunal Rules of Procedure r.4(1)(b) and County Court Rules Order 14 rr. 1-2).

She submits that the test to be applied is whether the document in question might reasonably be expected to provoke a line of enquiry which could advance the applicant's case or damage that of the respondents. We accept that proposition, based on authority stretching back to Peruvian Guano (1882) 11 QBC 55.

It is argued that the Chairman misdirected himself in failing to adopt that approach in ruling that report was irrelevant. He failed to consider the issues raised by the parties on their pleadings. The report may go to the adequacy or otherwise of the way in which the first respondent dealt with the applicant's complaints and to the application of his Equal Opportunities Policy, relied on in support of the statutory defence.

Further, she submits that the Chairman could not properly rule on the necessity issue without first looking at the report de bene esse. He ought not to have simply accepted the affidavit of Belinda Jane Moore, a solicitor, filed on behalf of the first respondent, which deposed to the fact that there was no relevant material contained within the report which had not already been disclosed within the witness statements produced to the applicant.

Alternatively, she contends that the Chairman's finding as to necessity was perverse.

In response, Miss Varty, for the first respondent, repeated what was said to the Chairman below. That the report dealt solely with an investigation into the complaints made by the applicant against the second respondent. It dealt with any recommendation made to institute disciplinary charges against the second respondent, or lesser action, and to refer the matter to the Crown Prosecuting Service with a view to criminal charges being laid. It was not concerned with the operation of the first respondent's Equal Opportunities Policy. The statement contained in Ms Moore's affidavit meant what it said and the Chairman was right not to go behind it. Bewicke v Graham (1881) 7 QB 400, 410, per Lord Coleridge CJ.

It was not necessary for the Chairman to inspect the report himself. This was not a case, such as Science Research Council v Nassé [1980] AC 1028, where relevance was admitted and the issue was whether confidentiality attaching to the document rendered disclosure and inspection unnecessary. In any event, the Chairman has a discretion as to whether he should himself inspect the document. Wallace Smith Trust Co. v Deloitte [1996] 4 AER 403, 410, per Neill LJ.

Conclusion

Having considered the rival submissions we prefer those advanced by Miss Varty. We can find no error of law in the Chairman's approach to the issue of necessity. In these circumstances it is unnecessary for us to go on to consider the Chairman's alternative findings in relation to PII. The appeal is dismissed.

The first respondent's application for costs in the appeal is refused.