United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR CARLO BREEN (Of Counsel) Instructed by Ms E Hammond Asda Stores Ltd Asda House Southbank Greet Wilson Street Leeds LS11 5AD
For the Respondent	MR DAN SQUIRES Instructed by Messrs Thompsons Solicitors St Nicholas Building St Nicholas Street Newcastle upon Tyne NE1 1TH


 


MR JUSTICE WALL

1. In this interlocutory appeal, Asda Stores Ltd (Asda) appeals from the decision of the Employment Tribunal sitting at Newcastle upon Tyne on 3 September 2001 whereby it was ordered to disclose all confidential witness statements it has taken from its employees during the course of an investigation into allegations that each of the Applicants to the Tribunal (the Respondents to this appeal) was guilty of using illegal drugs, namely cocaine and/or cannabis.
2. The Applicants in the proceedings before the Tribunal are three former employees of Asda, who, at the material time, were employed in managerial capacities. The actual order made by the Tribunal (as indicated a moment ago) was that the Asda disclose to the Applicants the witness statements relied upon by Asda at the disciplinary hearing prior to the Applicants' dismissals.
3. For present purposes and simply to outline the facts, I propose to deal only with one of the three cases. Each case is similar. Each Applicant alleges unfair dismissal and the circumstances leading up to the dismissal of each by Asda are broadly as follows. For this purpose I take Mr Thompson who is one of the Applicants. He was employed as a warehouse team leader in Washington. On 20 July there was what was called a "We're Listening Survey" undertaken by Asda where discussion of various issues and grievances was encouraged. It is said that, following the Survey several of Asda's employees raised allegations about Mr Thompson. Those allegations were investigated and Mr Thompson was suspended. The particular allegations were not pursued, but other allegations came to light and on 15 August 2000 there was an "investigation hearing". Due to the serious nature of the allegations, an in-depth investigation was initiated. Mr. Thompson's suspension lasted longer than otherwise might have been the case because the allegations were of an extremely serious nature involving both the use and supply of drugs, both at a post Christmas 2000 party and at a training event.
4. Asda says that the allegations were put together from the material which had been gathered. These were sent to Mr Thompson on 25 August 2000. There was then a disciplinary hearing involving the allegations of using and offering illegal drugs. The disciplinary hearing in Mr. Thompson's case commenced on 7 September and concluded on the 20 September. Asda gave Mr Thompson a further opportunity to call evidence. At the end of it, Asda's case is that it formed a reasonable belief that the allegations against Mr Thompson were well-founded; and he was accordingly summarily dismissed with effect from 20 September.
5. Mr Thompson exercised his right of appeal by letter dated 1 October 2000. That appeal was heard by the Head of Logistics at Asda, who concluded that the decision summarily to dismiss Mr Thompson should be upheld. Asda's case, accordingly, is that the dismissal of Mr. Thompson was appropriate and not unfair.
6. That, in summary, is what happened to Mr. Thompson. The position is very similar in relation to the others. Each has instituted proceedings before the Tribunal. Each says that the allegations are wholly untrue and likely to have been malicious.
7. In due course an application was made by the Applicants after proceedings had been issued for discovery of the statements made to Asda's investigating officer in the course of his investigation. Asda declined to give discovery on three broad grounds. The first was that a promise of confidentiality had been given to each of the makers of the statements and that disclosure would be a breach of the duty of confidentiality which had arisen. Secondly, Asda asserted that the reason a promise of confidentiality had been given was the fear of reprisals and violence against the makers of the statements. Mr Thompson, whose case I have highlighted, has been told by the investigator that people feared for their lives. Thirdly, Asda says that disclosure of the statements and in particular the identities of the makers of the statements is not necessary for a fair disposal of Applicants' applications for unfair dismissal.
8. Before we turn to the judgment of the Tribunal it is we think important to keep in mind what the proceedings are about and what they are not about. In this respect we adopt the classic exposition by Arnold J in the case of British Home Stores v Burchell IRLR [1978] at page 379. At this point we think it is sufficient if we read the summary contained in the head note:

"In a case where an employee is dismissed because the employer suspects or believes that he or she has committed an act of misconduct, in determining whether that dismissal is unfair an Industrial Tribunal has to decide whether the employer who discharged the employee on the ground of the misconduct in question entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time.

This involves three elements. First, there must be established by the employer the fact of that belief; that the employer did believe it. Second, it must be shown that the employer had in his mind reasonable grounds upon which to sustain that belief, And, third, the employer at the stage at which he formed that belief on those grounds, must have carried out as much investigation into the matter as was reasonable in all the circumstances of the case. An employer who discharges the onus of demonstrating these three matters must not be examined further. It is not necessary that the Industrial Tribunal itself would have shared the same view in those circumstances. Nor should the Tribunal examine the quality or material which the employer had before him, for instance to see whether it was the sort of material which, objectively considered, would lead to a certain conclusion on the balance of probabilities, or whether it was a sort material which would lead to the same conclusion beyond reasonable doubt."

9. The question, therefore, as is accepted on all sides (and as was plainly acknowledged by the Tribunal) is not whether the Applicants did or did not do what they are alleged to have done; but. (1) whether Asda believed that they had committed the acts alleged; (2) whether or not there were reasonable grounds to sustain that belief; and (3) whether Asda had carried out a sufficient investigation. Given Asda's size and resources that must mean an investigation which was detailed, full and generally consistent with the resources available to it.
10. The Tribunal approached the matter by summarising the arguments placed before it by Mr Grundy on behalf of Asda which we have encapsulated essentially in what we have said so far. It then considered arguments put forward by Mr Squires for the Applicants. Mr Squires had argued:

"The Tribunal had to consider the relevance of the undisclosed statements. The statements are central to the issues to be decided by the Tribunal. It was evidence upon which the respondents relied to dismiss the three applicants. It was the evidence contained in the statements which led to the dismissals. Without information from the statements the applicants could not show that the evidence was unreliable, inadequate or contradictory or that further enquiries should have been made. It may be that any of those considerations did not arise, but, without seeing the statements the applicants could not decide whether that was an avenue for them to explore. It went to the substantiality of the dismissal. He said that there had to be a recognised ground for refusing the disclosure, and he referred to Science Research council -v- Nassé in which he indicated that Lord Wilberforce had said that the ultimate test is whether discovery is necessary for disposing fairly of proceedings, if it is, then if it is necessary that disclosure must be ordered notwithstanding confidentiality. He also referred the Tribunal to Article 6 of the Human Rights Convention and that the applicants were entitled to a fair trial and to proper disclosure of information. Both Counsel referred the Tribunal to Linfood Cash and Carry Ltd –v Thompson [1989] IRLR 235, Science Research Council -v- Nassé (which I have already referred) B L Cars Ltd (formerly Leyland Cars –v- Vyas [1979] 3A11ER673. Mr Squires referred the Tribunal to Sunday Times –v- UK [1979] 2EHRR245 and D –v- NSPCC [1978] AC 171 and R -v- H and W."

11. The Tribunal's reasons are expressed in these terms:

"11 Our decision is an unanimous decision. We take as our starting point the Science Research Council case. The head note states an Employment Tribunal, "should not order discovery unless it was necessary either for disposing fairly of the proceeding or for saving costs, and when exercising that discretion in relation to confidential documents it should be in the interest of justice to have regard to (a) the fact that the documents were confidential and that to order disclosure would involve a breach of confidence and (b) the extent to which the interested third parties would be affected by the disclosure". The head note then goes on to say "in deciding whether discovery was necessary for that reason the Tribunal should first inspect the documents and consider whether justice could be done by special measure, such as covering up confidential but irrelevant parts of the documents, substituting anonymous references to specific names or in rare cases in camera".

12 We did read the statements. We found on reading the statements that some could be edited so as to hide the identity of the maker of the statements. Some of the other statements could not be classed as relating to the specific reasons for the dismissal, (that of the use of drugs) and only referred to matters which were peripheral. Some of the statements could not, in our view, be edited so as to disguise the identity of the person making the statements.

13 In coming to our decision we must also consider the case of Linfood Cash and Carry Ltd –v- Thompson. This gives detailed guidance to employers as to how they should deal with the situation of somebody making allegations in which they do not wish their identity to be disclosed to the particular employee against whom the allegation is being made. We note that the respondents have a human resources department and a legal department. We are assured by Mr Grundy that they have agonised over this case and their decision whether to disclose or not to disclose the statements. It is perhaps a pity that they did not follow in taking the statements, the advice given in Linfood. In that case it was made perfectly clear how it could b done by having an informer give information without it being specifically disclosed as to who had made the allegation. It was not done in this way, in particular relating to about six statements, where the identity of the person making the statement cannot be disguised.

14. The Tribunal has to decide the liability issue on the claims by the applicant's for unfair dismissal and whether or not there was an unfair dismissal, and in doing so, they will follow British Home Stores -v- Burchell. The Tribunal will have to decide whether the respondents had a reasonable belief in the misconduct, that it carried out a proper investigation and having carried out that proper investigation whether on the evidence from the investigation a reasonable decision was made to dismiss. The Tribunal will need to examine the evidence before the evidence before the dismissing officer; what information he had before him to come to his decision; whether the information entitled him to reach the decision and whether there were facts from the investigation which required further enquiry. All that evidence, in regard to this particular case, was before the dismissing officer in the form of the witness statements which have not been disclosed. The applicants therefore cannot question that evidence. They cannot test the dismissal officer as to whether or not he came to a reasonable decision in regard to the evidence. Mr Squires has raised of Article 6 of the Human Rights Convention. The applicants are entitled to have disclosed to them all relevant documentation. That is quite clear from the jurisprudence of Strasbourg Felbrugge -v- Netherlands [1986] 8 EHRR425 and McMichael UK 20 EHRR 425 are two examples.

16 We conclude that the witness statements upon which the dismissing officer formed his decision to dismiss are relevant documents and are necessary for the fair disposal of this case. We come to the conclusion that they should be disclosed in their totality to the applicants. We have considered the position on the various employees who made the statements and the threat to them, so we are told by the respondents, of violence. We have not had any evidence to support that contention. On reading the statements there is reference in only two statements to suggest that there was some fear. In one statement there was a suggestion that one of the applicants was, or was perceived to be, violent. The person who made that statement indicated that it did not bother him and he could deal with it. We therefore find that there should be disclosure of the witness statements."

12. With great respect to the Tribunal we part company from them in a number of respects in relation to these paragraphs. Firstly, the Tribunal criticises Asda for failing to follow the guidance given by Wood J in Linfood Cash and Carry Ltd, which is summarised in the head note of the report of the IRLR . We do not think this criticism altogether fair. Firstly, Wood J advises that statements should initially be taken "without regard to the fact that in those cases where anonymity is to be preserved, it may subsequently prove to be necessary to omit or erase certain parts of the statements before submission to others, in order to prevent identification". In addition, at page 235, he makes it very clear that the written statement of an informant in an investigation such as that which we are discussing, if necessary with omissions to avoid identification (our emphasis) should be made available to the employee and his representative.
13. It would have been entirely appropriate in the present case for statements to be taken "with omissions" as in Linfood in order to avoid identification. An order for discovery following Linfood principles would inevitably provide anonymised material for the employee who was receiving it. It seems to us therefore, with respect, to be illogical for the Tribunal to say that simply because a statement has been taken in a particular way and with the name attached, it should be disclosed in that form. That is not what Linfood says. It is clearly within the Tribunal's power to direct disclosure of documents in anonymised or redacted form, and in our judgment that is what it should have done in this case.
14. Secondly, it seems to us, that although the Tribunal refers to the confidentiality issue it did not give it any adequate weight, particularly in a case where hard drugs are allegedly involved. In those circumstances it would be an entirely proper procedure for Asda in investigating complaints of this nature to give a promise of confidentiality, and one which the Tribunal should maintain.
15. We do not agree thirdly, that knowledge by the Applicants of the identities of those who made the allegations is necessary for the fair and proper conduct of the proceedings. We return once again to the issues identified in Burchell and the statement by Arnold J which is cited in the skeleton argument by Mr Green on behalf of Asda. We do not think it necessary to read it all, given the substantial extract we have already cited from the head note in Burchell. However, it is worth repeating the nature of the question for the Tribunal. As Arnold J put it:

"The issue is did the employer upon the facts and circumstances reasonably accepted by him at the relevant time which imports the notion that there has been sufficient investigation, act fairly and reach a reasonable and reasoned decision on the evidence"."

16. In our view there is sufficient material before the Tribunal for that issue to be properly investigated and sufficient material available to the Applicants for there to be a fair hearing under Article 6 of the European Convention. The investigating officer can be cross-examined as to why he accepted or rejected evidence. He can be cross-examined in detail as to the nature and extent of the investigation. We take the view that in testing the question of reasonableness the Applicants have sufficient material to enable the case to be disposed of fairly and within Article 6.
17. We also, fourthly, detect as inconsistency between paragraphs 12 and 16 of the reasons.

In the former the Tribunal identified ways in which some of the documents could anonymised. It also took the view that other statements "could not be classed as relating to the specific reasons for the dismissal (that of the use of drugs) and only referred to matters which were peripheral." All of this, we think, identifies the basis upon which a discretion to order discovery of relevant documents (some, it would appear are irrelevant) in redacted form could be made. Yet in paragraph 16, the Tribunal does not put that analysis into effect. To the contrary, it goes very much to the other extreme and makes a blanket order for discovery and directs that the witness statements should be disclosed "in their totality". This is not, we think, the discretionary exercise envisaged by the House of Lords in Science Research Council -v- Nassé, upon which the Tribunal appeared to be basing itself.

18. We are therefore satisfied, taking these points together, and looking at the judgment as a whole, that the Tribunal failed properly to exercise its discretion in ordering blanket discovery; that its decision is wrong in law and must be set aside.
19. The question is "What do we do?" We have considerable sympathy with the argument put forward on behalf of the Applicants that they should have as much material as is reasonably possible in order to be able to pursue their applications and defend themselves against the allegations which have been made against them.
20. Accordingly, in allowing the appeal we do not think it right simply to set aside the Tribunal's order. We do not have the documents ourselves, however, and we are not in a position to undertake the sifting exercise. In these circumstances we think the proper course is to return the matter to the Tribunal with a direction that it looks again at the documents, and carries out the exercise identified in Science Research Council –v- Nassé in accordance with the ruing which we have made as to confidentiality. That is to say that nothing is to be disclosed which in any way identifies the complainants or the makers of any of the statements unless such person or persons specifically agrees to be identified. If statements have not only to be anonymised but also redacted to achieve this objective, that is what the Tribunal should direct. No doubt Asda will need to continue its enquiries and it may be after this passage of time that one or more of the statement makers feels able to come forward and to be identified. That, however, is a matter not for us but for Asda, and we invite the Tribunal therefore to approach the matter in this way. If this approach means that some of the statements have to be excluded in their entirety because it is not possible to conceal the identity of the makers that is what will have to occur, and the question of the fairness of any of the dismissals will be have to be judged in due course by the Tribunal on that basis.
21. We propose, subject to any further argument to invite Counsel to agree a form of words for the Tribunal to reflect the circumstances in which we are returning the matter to it. If either Counsel has any observations of whether it should be the same Tribunal or different constituted Tribunal we will hear them now.