United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON
For the Respondent	MR A WATERS (of Counsel) Instructed by: Metropolitan Police Service Solicitor for the Commissioner New Scotland Yard London SW1 OBG


 


MR JUSTICE LINDSAY (PRESIDENT)

1. I need to begin this judgment by referring to Regulation 16 of the Employment Tribunals (Constitution and Rules of Procedure ) Regulations 2001 Schedule 1; 16 is headed "Restricted Reporting Orders". It provides:

"(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 made by notice to the Secretary or of its own motion, make a restricted reporting order."

2. On 8 June 2001 K presented her IT1. It was for:

"Improper dismissal of employment application. Anticipated breach of ECHR (1998)."

Almost immediately afterwards an amended copy IT1, it seems, was sent to the Employment Tribunal by K. That, in its box 1, saying:-

"Please give the type of complaint you want the Tribunal to decide …."

was completed as saying:

"Whether I have been discriminated against on grounds of sex - both directly and indirectly, and have been the subject of victimisation, and whether I have been the recipient of adverse and unlawful 'positive/reverse discrimination' because the MPS has sought to define me as 'white'."

In her box 11 K indicated that on 29 December 1999 she had applied for the post of police constable. She had furnished full details. She says that she had no early response and had to get into contact to ask what was going on. She was then, on 21 March 2001, finally informed that her application had been rejected. She says:

"It is my contention that the true reason for my rejection was my forthright disclosure in my application dated 29 December 1999 that I have been the recipient of surgical sex re-assignment, though I made clear in my application that I would be willing and able to function in either gender role. I believe that the MPS's treatment of me may have been unlawful on the grounds of indirect and direct sex discrimination and may have been characterised by victimisation".

3. There was then an IT3 put in by the Police that said:

"The Reasons for the Respondent's Rejection of the Applicant's Application for the Post of Police Constable ("the Post")

The Application Form and Associated Information

3 The Applicant made a written application for the Post which contained the following material information:

a. Replies to a Medical History Questionnaire, which disclosed, inter alia:

i An ongoing significant endocrine disorder, for which the Applicant
continued to receive treatment."

And then I do not need to read the rest of that.

In paragraph 7:

"The Decision on Review

7. It is accepted that the process of review was very protracted, for which the Respondent has apologised and again apologises to the Applicant.

8. The reasons for the delay, in part, are that enquiries were being pursued with

a. the various police forces referred to by the Applicant in her replies set out at para 3(b) above, which were answered in about June 2000."

And then there are some references that I need not read, and then, referring back to those further enquiries, paragraph 9 says:

"The results of the said further inquiries were as follows, in so far as material:

a The Greater Manchester Police provided information, inter alia, that a person who was clearly the Applicant had been investigated in 1991 in connection with violent assaults at a residential premises, and that he (the Applicant was then living as a male) had not been "cleared absolutely", but remained the prime suspect, albeit insufficient evidence was available to pursue charges. "

And a little later in paragraph 10, the IT3 says:

"As a result, the Respondent communicated the decision not to grant a review of its rejection, in a letter dated 21 March 2001"

It is right to bear in mind that what the Police were saying was that the Greater Manchester Police provided information inter alia that a person who was being investigated and so on as I have cited.

4. K then applied for a Restricted Reporting Order to the Employment Tribunal.
5. On 9 August 2001 the Employment Tribunal, (the Chairman, Mrs J R Hill, was sitting alone) held that the Employment Tribunal had no jurisdiction under which the Tribunal could make a Restricted Reporting Order. The Extended Reasons began:

"1 On 8 June 2001, the Applicant presented an Originating Application in which he asserted there had been an improper dismissal of an employment application and an anticipated breach of the Human Rights Act 1998. The Originating Application was amended but the basis of the Applicant's claim was that a rejection of his application to be a police office because he had been the recipient of surgical sex reassignment."

And then Mrs Hill set out Rules 16(1) & (2). In paragraph 4 of the Extended Reasons she continued:-

"4 Neither of these two Rules relates to the Applicant's situation. In the case of Chief Constable of West Yorkshire Police -v- A [2000] IRLR 465, a case on all fours with this complaint, the EAT concluded firstly that the Employment Tribunal had erred in considering it was empowered by domestic legislation to make a Restricted Reporting Order and secondly that the EAT has a jurisdiction deriving from the equal treatment directive to make such an order. The EAT is a superior court of record and therefore can have inherent jurisdiction. The Employment Tribunal is a creature of statute and therefore only has the jurisdiction given it by Parliament. In those circumstances, therefore, although in Chief Constable of West Yorkshire Police v A the Applicant ultimately obtained a Restricted Reporting Order, it was not one which the Employment Tribunal had the jurisdiction to give.

5 In the circumstances, therefore, I must refuse the Restricted Reporting Order request."

Accordingly Mrs Hill decided that there was no jurisdiction under which the Tribunal could make a Restricted Reporting Order on the particular facts of the case as they emerged before her. That Decision was sent to the parties on 9 August 2001 and immediately on the same day K appealed to the EAT.

6. That appeal to the Employment Appeal Tribunal is the only application of substance which is made by K and which is still extant before the Employment Appeal Tribunal. Because the facts were such that if K's case had proceeded at the Tribunal below without there being the benefit of a Restricted Reporting Order K would be or might very well have been prejudiced, the Appeal was arranged to come on as a matter of great urgency; it was, of course, in the long vacation and fortunately His Honour Judge Wilkie was able to deal with the matter and he heard it the very next day, 10 August 2001. He gave a judgment. It begins:

"1 This is an appeal by [K] against a Decision of the Employment Tribunal refusing to make a Restricted Reporting Order in connection with her application against the Commissioner of Police of the Metropolis."

In paragraph 3 he said:

"3 In essence, the appeal is against the ruling of the Tribunal that it did not have jurisdiction, nor was it obliged to take the steps provided for by Rules 15(6) and 16(1) of the Tribunal Regulations 2001. The triggers for that duty and that power are that the case with which they are dealing appears to involve, or does involve, allegations of the Commission of a sexual offence, or allegations of sexual misconduct.

4 The application of [K] was on the grounds inter alia of sex discrimination against the refusal of the Metropolitan Police Commissioner to accept her application for employment. In the Notice of Appearance, in paragraph 9(a) the Commissioner said the following:"

And then he quotes the passage that has within it the words "inter alia" which I have already cited. Then, continuing with his judgment:

"On the face of it, that contention of the material information said to have been given by the Greater Manchester Police, did not appear to involve an allegation of a commission of a sexual offence, nor an allegation of sexual misconduct, and accordingly on that basis, no jurisdiction would lie in the Employment Tribunal to make a Restricted Reporting Order nor any obligation to take steps to prevent anyone affected being identified in connection with the proceedings."`

In paragraph 6 he says:

"6 It is, therefore, at the moment, somewhat difficult to see how, if the material information upon which the Metropolitan Police Commissioner acted was limited to the earliest of the incidents there referred to, namely a violent assault, the power to make the Order sought could possibly arise. However, the paragraph in the Notice of Appearance refers to other information provided by the Greater Manchester Police and, whilst one may surmise what that information might be, and [K]invites me to infer that it must have referred to the other sexual offences in respect of which she was arrested and subsequently released and exonerated, I am not in a position to draw that inference."

Then, after reference to the case Chief Constable of West Yorkshire Police v A ,the reference to which I have already given, His Honour Judge Wilkie continued :

"9. I am persuaded that that Decision was right and therefore, insofar .."

(that decision being the A case)

"…….. insofar as it is necessary to protect her assertion of her rights in this Tribunal, I am content that such a Restricted Reporting Order may be made from and including today's proceedings through to the commencement of the hearing of her appeal before this Tribunal, which I understand can be accommodated on 10 October.

10 However, in the absence of elucidation as to what further information the Greater Manchester Police provided to the Metropolitan Police Commissioner, I am simply not in a position to say whether the Employment Tribunal erred in law, on the footing that they had inadequate information, and that in fact this case will involve the making of allegations of a sexual offence or sexual misconduct, so as to give rise to a domestic jurisdiction to make such an Order.

11 I am, therefore, going to adjourn this appeal to a hearing on 10 October, but I am going to couple that Order for Adjournment with an Order for Directions requiring the Metropolitan Police Commissioner, within fourteen days, to file and serve full particulars of the information provided by the Greater Manchester Police in respect of the Applicant, which is referred to in paragraph 9.a of their Notice of Appearance in the phrase "inter alia" and also to discover and give opportunities for inspection, no doubt by furnishing copies to the Appellant of all documents which were provided by the Greater Manchester Police in providing that information."

There was then discussion as to the information which was required to be provided by the Metropolitan Police, from whom it was to have come to them if it was such that it had to be disclosed and ultimately, the Order that emerged put the matter rather differently. The Order provided that:

"THE TRIBUNAL DIRECTS that the Metropolitan Police Commissioner do within 14 days of the seal date of this Order file and serve full particulars of the information provided by the Greater Manchester Police in respect of the Applicant which is referred to in paragraph 9(a) of their Notice of Appearance in the phrase "inter alia" and to any other information provided by the Cheshire Constabulary and the Lancashire Constabulary in respect of the Applicant."

Note that strictly speaking it is not an Order as to discovery of documents as such but the filing and serving of Particulars as referred to in the IT3 and comprehended within the expression "inter alia".

7. Well, some documents were then supplied to K but she was very dissatisfied with the results of the search and by 10 October 2001 she had made several applications to the Employment Appeal Tribunal which were then heard and on 10 October, after the matters coming before a panel of three at the Employment Appeal Tribunal, an Order was made and so far as relevant it says this:

"THE TRIBUNAL DIRECTS that the Appellant do serve on the Respondent and the Employment Appeal Tribunal within 14 days a sworn affidavit/statement of truth that includes but is limited to all allegations K wishes to rely upon in support of her application for further discovery; 14 days thereafter the Respondent do answer by way of a sworn affidavit/statement of truth and 7 days thereafter the Appellant do reply by way of sworn affidavit/statement of truth.

THE TRIBUNAL ORDERS that the aforesaid application do be stood over generally with liberty to restore after the expiry of 35 days."

8. On 23 October 2001 K put in a Statement of Truth raising questions as to the information which the Metropolitan Police had received from the North Wales Police (and so to that extent falling outside His Honour Judge Wilkie's Order) and on 6 November 2001 the Metropolitan Police put in an affidavit from Melanie Jones, the solicitor with conduct of the matter on behalf of the Respondent. She says:

"3 On 10^th August 2001 H.H.J Wilkie QC made an order that the Respondent provide full particulars of information provided to the Respondent by Greater Manchester Police, the Cheshire Constabulary and by Lancashire Police.

4. The Respondent complied with the order by filing Further Particulars of the Grounds of Resistance dated 24^th August 2001. The Respondent further disclosed documents in its possession relating to the enquiries that it had made of Greater Manchester Police and Cheshire Police.

5. The employee of the Respondent who dealt with the vetting of the Appellant's application is Lydia Estridge. She has since left the Respondent's employment. The Respondent's recruiting department, P7, have made efforts to contact her and in addition I wrote to her on 24^th October 2001 via the Metropolitan Police pensions department. To date I have had no response from her.

6. I personally have no direct knowledge of the enquiries that were undertaken by the Respondent or the responses received. I can however say that I have carefully reviewed the Appellant's application files and can state …"

and K draws attention to the plural, "files",

"(1) ……there is nothing in the files to indicate that an enquiry was made of North Wales or Lancashire Police. There is a note on the file made by Lydia Estridge on 16^th June 2000 stating……."

And then it is quoted and it says that Cheshire, having been helpful, then were silent, that North Wales had not been approached and that Greater Manchester Police had not replied. In subparagraph (2) Melanie Jones says:

"There is a copy of the request sent to Greater Manchester Police on the files."

And in sub-paragraph (3) she says:

"There is nothing in the files to indicate that enquiries were made to any police force other than Greater Manchester Police and Cheshire Police."

And in subparagraph (4) she says:

"The documentation annexed to the Respondent's Further Particulars of the Grounds of Resistance and the letter referred to in paragraph (2) above is the totality of the documentation on the files which relate to enquiries to or responses from any police force concerning the Appellant's convictions, arrests or other investigations by the police."

On 13 December K, as was required if she wished to take advantage of the ability to reply, did reply. That was within the seven days of the Police's evidence and, later on, in what is in my copy flag 7, on 11 December she put in a longer document, headed in big print "Request for Inter Partes Hearing" which include aspects appropriate to today's matter.

9. Now it has to be remembered that the only matter before the EAT at the moment is the question of compliance with, and any further Order being necessary in respect of, His Honour Judge Wilkie's Order. That was made clear by a letter from the EAT to K on 29 January, the middle paragraph of which says this:

"All that is required to be before the Court on the restored directions hearing is the issue dealt with in the last paragraph of page 1 of the Order of 10 October 2001 and in the first full paragraph on its page 2, namely whether there has been adequate compliance with His Honour Judge Wilkie's Order for Discovery and if not, why not and what further Order, if any, would be appropriate".

That, I hope, is enough of the background to the matter immediately before me.

10. It is not for the Employment Appeal Tribunal, as if at first instance, to make Orders as to the information or evidence to be produced by one party or another for the purposes of a case being conducted at the Employment Tribunal. If the Employment Tribunal makes an Order or fails to make an Order as to evidence to be deployed at the Employment Tribunal and if there is an error law in so doing and if there is an appeal to the Employment Appeal Tribunal on that point then in some cases the EAT might decide to make an Order itself as to evidence to be deployed at the Employment Tribunal or not to be deployed at the Employment Tribunal rather than remitting the matter to the Employment Tribunal, but that is likely to be a very rare occurrence. The Employment Appeal Tribunal has no original jurisdiction in such matters; thus, that situation apart, only the Employment Tribunal makes Orders as to the evidence to be deployed at the Employment Tribunal. The Employment Appeal Tribunal can though, of course, make direct Orders as to evidence on an appeal for the Employment Appeal Tribunal; in such matters it is guided by cases such as Wileman -v- Minilec which in turn adopts the well known case of Ladd -v- Marshall. But it has to be remembered that the Employment Appeal Tribunal can only deal with points of law and it is therefore comparatively rare for the Employment Appeal Tribunal to make Orders as to evidence to be deployed in relation to EAT hearings. It will only do so, amongst other considerations, when the evidence in issue bears upon the question before the Employment Appeal Tribunal.
11. So a primary question for me to consider is whether K's request for further information or further documents or further particulars touches not the proceedings in the Employment Tribunal, which are not my immediate concern, but whether such matters touch the issues in the appeal to the Employment Appeal Tribunal. The issue at the Employment Appeal Tribunal is a somewhat technical one as to the Employment Tribunal's jurisdiction under Rule 16(1) and as to whether Mrs Hill had, on 9 August 2001, any jurisdiction than provided by that Rule to make a Restricted Reporting Order. The IT1 as before Mrs Hill did not allege sexual misconduct. The IT3 as before her did not allege sexual misconduct. It seems to me she had no reason to think that the case would involve such allegations. As far as could be judged from the "pleadings", there was no reason, it seems to me, for Mrs Hill to think that the Metropolitan Police would be alleging such conduct on K's part or indeed on anyone else's part or that K would be alleging it on any one's part either. It matters not for the purposes of the Employment Appeal Tribunal what any other Police Force said to the Metropolitan Police about K as long as one cannot say of the Employment Tribunal proceedings that they will involve allegations of sexual misconduct. It matters or may matter for the purposes of the Employment Tribunal but that is not or not yet a matter for the Employment Appeal Tribunal whose only substantive rôle

is at the moment to deal with the appeal against Mrs Hill's Order as to jurisdiction.

12. Evidence within Rule 16(2) if the question arises at all, seems to me best left for separate consideration when oral evidence is about to be given, or seems to be about to be given, of a character such as could fall within it, and so, with respect to that, rather different considerations apply.
13. Given the observations I have made it may be said that His Honour Judge Wilkie's Order was thus rather more widely cast than was appropriate. But it was, of course, the Order that was made. However, when I am asked, as I am, to consider making further Orders by way of insisting on full compliance with it, I am entitled and indeed must approach such questions by asking whether any steps required by way of further compliance with His Honour Judge Wilkie's Order would be likely to conduce to a better informed hearing of the jurisdictional appeal, the appeal against Mrs Hill's Order. I am not concerned with whether further steps ought to be taken to improve K's case at the Employment Tribunal and still less am I concerned with improving K's case in prospective defamation proceedings which she has several time mentioned in the course of argument today. Now, whether or not Melanie Jones is right in saying that the totality of the files on the point has now been disclosed, I cannot see how further enquiry or further affidavit evidence as to documents would throw any new light or better light on the question of the EAT appeal, in other words the case as to whether Mrs Hill's view of jurisdiction was right or wrong in law on 9 August 2001. I cannot see further affidavits or further enquiry throwing light on whether the Employment Tribunal proceedings truly did then involve allegations of sexual misconduct (or involved would likely to involve the giving of "personal" evidence falling with Rule 16(2) ).
14. I am therefore not minded to require any more documents or information from the Metropolitan Police, with one exception which I shall come on to. That exception arises in this way. The Order of His Honour Judge Wilkie was not made solely as to documents but as to Particulars, as I have earlier mentioned. It seems to me that, given the affidavit of Melanie Jones, I must take the case at the moment to be that the documentary side has by now been adequately satisfied. But what if, within the description of Particulars, information was received which did not lead to its being put into documentary form? Melanie Jones' affidavit is only as to documents; she, time after time, talks about what is in the files. She has no direct personal knowledge and so cannot go beyond the files. But Lydia Estridge, who was identified earlier in the affidavit of Melanie Jones, presumably can or certainly might. She is, as it would seem, a Police pensioner. At all events, the Respondent has been able to write to her. There is no reason to assume that the Metropolitan Police has any difficulty getting in contact with her.
15. Accordingly, within seven days from today, the solicitor to the Metropolitan Police is to write to K and to the EAT indicating whether, as best he can judge the future conduct of the IT1 and the IT3, the Metropolitan Police will or will not be making any allegations of sexual misconduct either against K or against anyone else, and whether he expects K to be making any such allegations relevant to the appeal to the EAT on her side. If the answer given in that letter, to be written within seven days, is negative then nothing further need be done by way of a further step in performance of His Honour Judge Wilkie's Order, at any rate for the time being. If, however, the answer is not negative then the Metropolitan Police should write to Lydia Estridge and ask whether Lydia Estridge or her solicitors would be willing to allow the Metropolitan Police to give to K Lydia Estridge's address or telephone number with a view to K then being able, if she chose, to approach Lydia Estridge or Lydia Estridge's solicitors for information or for a witness statement. The solicitor to the Metropolitan Police is also to tell K of the reply received from Lydia Estridge, or Lydia Estridge's solicitors if, indeed, a reply has been received.
16. Beyond that, I make no Order for further steps to be taken by the Metropolitan Police to comply with His Honour Judge Wilkie's Order. That is not to say that other steps may not be relevant at the Employment Tribunal but that is not a question for the Employment Appeal Tribunal, which as I said earlier, has no original jurisdiction in such a matter. So I do nothing to stop K making application to the Employment Tribunal but I indicate that no further steps will be taken here, the EAT, by way of implementation of His Honour Judge Wilkie's Order save for the very limited action, which I have already indicated I require. But I do suggest that K should reflect very carefully on whether the appeal against Mrs Hill's Order is a proceeding worth pursuing. Given that a Restricted Reporting Order has protected K since 10 August 2001 and continues to do so, whether Mrs Hill was right or wrong on 9 August is surely now a question devoid of any practical significance to K or anyone else, except those who wish to investigate the jurisdictional limits of the Employment Tribunal as a matter of academic interest. It might well be thought to be quite disproportionate for Court time and parties' money and parties' anxieties to be deployed on a question which now would seem to be of only academic importance, if any at all. That is a matter for K to reflect upon. It is to be remembered that the 2001 Rules now incorporate the overriding objective and on any future applications the overriding objective will need to be borne in mind. I say that merely to encourage a degree of reflection on K's part, but, limiting myself to whether further steps are required by way of implementation of the Order that His Honour Judge Wilkie made, I indicate only that that limited step that I have already described need be made.

[After further discussion with the parties the letter to be written by the Metropolitan Police's Solicitor as to whether he expected to be making allegations of sexual misconduct was varied to include only "any such allegations relevant to the appeal to the EAT" and the transcript on the point has been amended accordingly.]