United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P ASTER (of Counsel) MR D HAMILTON Solicitor to the Commissioner Metropolitan Police Service Solicitors Dept New Scotland Yard, Broadway London SW1H OBG
For the Respondent	MR R ALLEN Q.C MS D KING Hillingdon Law Centre 12 Harold Avenue Hayes Middlesex UB3 4QW


 


THE HONOURABLE MR JUSTICE MORISON (PRESIDENT): This is an appeal against an interlocutory decision of an Industrial Tribunal Chairman as to the disclosure of two investigation reports. Following argument from the parties, the learned Chairman concluded that the reports were relevant on the basis that credibility was likely to be a central issue in relation to Police Constable Bowie's complaints of unlawful discrimination brought against his employers, the Commissioner of Police and a named individual, and that the Tribunal should have as much assistance as possible in determining the issue of credibility. The learned Chairman went on to say that:

"It was clearly in the public interest that there should be a public confidence in the police force and that an individual police officer who considers that he has been subjected to race discrimination by a more senior officer should be able to litigate that issue without impediment".

It seems to us, in a case such as this, that a Tribunal must ask themselves the question whether a document such as this is irrelevant. If it is not, that should be an end to their enquiry. Secondly, if it is relevant, whether it is necessary for the doing of justice between the parties applying the ordinary discovery test. And thirdly where as here the public interest immunity is claimed, disclosure should be ordered, balancing the public interest in favour of immunity against the public interest in favour of a full, open trial. As I understand it, the Industrial Tribunal's statement that it was in the public interest that there should be public confidence in the police force and so on, was their weighing of the relative public interest elements.

The Commissioner of Police and the second named Respondent, the named police officer, have appealed that order and the case is due to commence on 15 February.

Therefore it has been brought into the Employment Appeal Tribunal as a matter of urgency.

On behalf of the Appellant, it was argued that the Industrial Tribunal had taken their eye off the ball on the question of relevance and necessity, that they should have said to themselves that the decision maker who had conducted those investigations and his opinion of what had taken place was not of pertinence to the question which the Industrial Tribunal had to decide, because it was their view of the credibility of the parties which mattered, and not the view of the investigating officer. It was said that there is strong authority from the Court of Appeal which suggested that investigation reports of this sort should not normally be disclosed and that it was likely to be only rare cases where it is necessary in the interests of justice that they should be.

On behalf of the complainant, the Respondent to this appeal, Mr Allen submits that in this particular case it was likely that the investigation officer's reports would be highly material to the issues between the parties. It is a somewhat unusual case in the sense that it is the contention of the employers that effectively the individual either never made a complaint of race discrimination directly in the first place, or if he had done he withdrew it at certain stages during the process. It is their case that the application made by the Applicant in these proceedings is scandalous, frivolous and vexatious.

Against that background, Mr Allen submitted to us that it was material to look at the investigation report because it might well throw light on the general approach taken by senior officers in this police force to complaints of race discrimination and might well cast light on the issues raised in paragraph 12 of the amended grounds of resistance, having regard to, in particular, paragraph 37 of the Applicant's complaint.

During the course of argument, I invited the representative of the Commissioner, Mr Aster of Counsel, if he would have any objection to the Court looking at the reports to see if there was any materiality in them. He very kindly has made them available to me and through me to my colleagues and we are all of the opinion having, had an opportunity to go through them, that on the widest interpretation of relevance, there is nothing in them of any materiality to the issues in these proceedings. That being said, it seems to us that it would be appropriate that the Industrial Tribunal should not concern themselves with these reports and I would respectfully endorse what was said by the Court of Appeal in the Wade case, that "if such reports were disclosed they might provoke what should be an investigation into the Applicant's complaints becoming an investigation into the police's own investigation."

I consider in these particular circumstances, that the order made by the Industrial Tribunal should with great respect, be set aside, not because I criticise in any way their approach to this question but rather because I have had the advantage of looking at the documents and deciding the case on the basis of what I have seen. That was a privilege denied to them and I understand that no complaint could be made about that fact.

Accordingly, I want to make it absolutely plain to that Tribunal that the outcome of this appeal might well have been different had there been anything in those reports which on a wide interpretation of relevance, would have assisted them in their task. Therefore the appeal will be allowed on the basis that I have indicated. It remains for me just to indicate, although Counsel has not invited me to do so, that the Tribunal might be well advised on Monday to take stock of precisely the way the case is going to be presented because although their letter setting out the issues is no doubt going to be of considerable assistance to the parties, it was not, I think, intended to restrict the evidence in this case. It would be appropriate, I think, for them just simply to take stock of the position before the evidence is given so that nobody is taken by surprise as to the ambit of the enquiry they are going to have to undertake. That is not to suggest that the Tribunal had incorrectly defined the issues, merely that behind any summary of the issues there may also be other matters which arise out of them, and which will need to be looked at in the evidence.