United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Ms Rachel Crasnow (of Counsel) Instructed by: Asda Stores Ltd Asda House Southbank Great Wilson Street Leeds LS11 5AD
For the Respondent	Mr. James Laddie (of Counsel) Instructed by: Messrs Thompsons Solicitors St Nicholas Building St Nicholas Street Newcastle upon Tyne NE1 1TH


 


THE HONOURABLE MR. JUSTICE BURTON (PRESIDENT)

1. This is the Hearing of an appeal and a cross-appeal in the case of Asda Stores Ltd v Thompson and Others. Mr Thompson, Mr Pullan and Miss Caller complain in the Employment Tribunal in Leeds of unfair dismissal. The Respondent, Asda Stores Ltd resists those applications. The circumstances of the dismissal were that there was an investigation into allegations that the Applicants were guilty of using illegal drugs. Other matters were also involved, but that was the central nature of the allegation. Witness Statements were obtained from some thirteen informants, information from which was thus before the Respondent employers when they came to consider the question of dismissal, and, relying no doubt on that information and other information, they dismissed, and, no doubt similarly so relying, they seek to establish that the dismissal was fair.
2. In order to succeed in a claim of unfair dismissal, in those circumstances, an employer does not need to prove that the employees were guilty of the conduct alleged against them, but they must show that they had a reasonable belief in their guilt, and that they carried out a reasonable investigation and conducted such investigation fairly and properly. The principles are long established in the Employment Tribunals, and of course the seminal case is still British Home Stores Ltd v. Birchell [1978] IRLR 379.
3. The Tribunal has had to grapple with directions for the trial of these matters which are now some time ago, the dismissals having occurred in 2000, and the employers asserted that they were not in a position to disclose the witness statements to which we have referred because they have made promises of confidentiality to those informants from which they were neither able, nor indeed wished, to resile because those informants were afraid of one or more of the Applicants, and would not have been willing to give the information in question had they not been given assurances that their identities would never be revealed.
4. The Employment Tribunal at Leeds made an Order that nevertheless those witness statements must be disclosed to the Applicants, and that Order was the subject Order of an Interlocutory Appeal to this Employment Appeal Tribunal which came before this Tribunal, differently constituted, namely Wall J, Miss C Holroyd and Mr G H Wright MBE, on
   11 October 2001. The parties at that stage were represented in relation to the Respondent by Mr Breen, of Counsel, and the Applicants by Mr Squires, of Counsel; not as they are represented today for us by Miss Rachel Crasnow for the Respondent and Mr James Laddie for the Applicants. Mr Laddie tells me that he believes that in fact the Applicants were not, even at that stage, seeking to defend the Decision of the Employment Tribunal in its totality, namely a blanket Decision that all those witness statements should be disclosed; but that nevertheless was the Order which was appealed against and successfully appealed against.
5. The Employment Appeal Tribunal delivered a unanimous judgment per Wall J which has now been reported in 2002 IRLR 245 [Asda]. The relevant parts of the judgment can be summarised and/or recited as follows.
6. In paragraph 8, the Tribunal referred to what it called "the classic exposition" by Arnold J in British Home Stores v Burchell. At paragraph 9 Wall J summarised the position accordingly as follows:

"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."

7. In paragraphs 10 and 11 of the judgment, Wall J set out the relevant parts of the Decision of the Tribunal below which was, by his judgment, being overturned. Paragraph 12 continued as follows:

"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, …… 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"."

8. In paragraph 16 of his judgment, Wall J discussed the impact of Article 6 and in paragraph 17 asserted that there was an inconsistency between certain parts of the Tribunal's Decision. In paragraph 18 Wall J therefore concluded

"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".

9. Wall J then turned to the conclusion of the Appeal Tribunal as to what the order should be, having thus set aside the Decision of the Employment Tribunal, and that was set out in the following two paragraphs:

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 have to be judged in due course by the Tribunal on that basis."

10. After that judgment the matter was restored to the same Tribunal, no contrary order having been asked for or made before this Tribunal, and it appears that there was some uncertainty about the effect of that order at least in the minds of the parties, and possibly in the minds of the Tribunal itself; and what occurred was that, with the knowledge of the Applicants' solicitors, the Respondent's Solicitors wrote to the Employment Appeal Tribunal asking for clarification, and on 17 July 2002 a letter was sent by an Associate on behalf of the Registrar to the in-house lawyer for the Respondents with a copy to the Applicants, and it read as follows:

"Mr. Justice Wall has been shown the relevant letter from the Respondent's Solicitor. I am ….. instructed to reply as follows: Mr. Justice Wall is somewhat puzzled by the letter. Paragraph 20 of the judgment of the EAT makes it clear that the matter is to be remitted to the Tribunal for the Tribunal to carry out the exercise identified in Science Research Council v. Nasse [1978] IRLR 464. In other words the Tribunal is to re-examine the documents and, in the words of Lord Wilberforce to make an order "subject if necessary to safeguards, for discovery and inspection of such of them as are necessary for the fair disposal of the case".

The EAT went on to make it clear that (subject to what he said in the following paragraph) nothing which identified any of the makers of the statements should be disclosed and "if statements have not only to be anonymised but redacted to achieve this objective, that is what the Tribunal should direct."

There is no internal contradiction within paragraph 20. The EAT direction is that anonymity should be maintained unless individual witnesses are content to waive it. … It is … for the Tribunal to examine the documents in the light of any submission made to it by either side and to order disclosure of statements or parts of statements within the framework laid down in paragraph 20 namely 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 agree to be identified.""

11. There was a hearing before the Tribunal on 8 November, which perhaps indicates the problem in the matter being sent back to the same Tribunal as had made the earlier order, but certainly indicates that there continued, rightly or wrongly, to be some uncertainty as to the ambit of Wall J's judgment, notwithstanding the clarification given by the letter of 17 July.
12. A letter was then sent by the Tribunal dated 11 November 2002 to the parties by the Regional Secretary of Tribunals on behalf of the Chairman of the Leeds Employment Tribunal in charge of this case and that reads as follows:

"I am instructed to write to you by the Chairman … following the Hearing on 8 November 2002. Prior to the parties leaving the Tribunal it had been agreed that the Tribunal would formulate a letter to the Employment Appeal Tribunal to clarify the appeal decision of 11 October 2001 in this case.

The Tribunal considered, in deliberations, the arguments put by both Counsel and the decision to seek guidance from the Employment Appeal Tribunal. After further consideration of the documents and the arguments the Tribunal did not consider that it was an appropriate action to take.

The Employment Appeal Tribunal has provided guidance to the exercise of the Tribunal's discretion in admitting or not the statements under consideration. In the Employment Appeal decision, paragraph 14, the Tribunal is required to maintain the confidentiality of the makers of the statements. It does so by examining all of these statements in accordance with the guidance given at paragraph 20 of the Employment Appeal Tribunal Judgment summarised as follows:-

(1) The Tribunal is required to look at the statements and carry out the exercise in identified in Science Research Council – v- Nasse.

(2) Nothing is to be disclosed which in any way identifies the makers of statements.

(3) If a maker of a statement agrees to be identified that statement can be disclosed to the applicants

(4) Those statements not covered by (3) above have to be:-

(a) anonymised to conceal the identity of the maker of the statement;

(b) if that is not possible, the statement must be redacted to conceal the identity of the maker of the statement

(c) if redaction is not possible to conceal the identity of the make[r] of the statement the statement is to be excluded in its entirety.

(5) Statements which can be disclosed in accordance with (4) above must also be anonymised, redacted or excluded if they reveal the maker of another statement to which confidentiality attaches.

To carry out this process the Tribunal requires copies of the statements in their original form. The respondents should send these to the Tribunal immediately. The Tribunal will then carry out the above exercise giving reasons for so doing.

The respondents should identify the maker of each statement in the same way as page 37 of the bundle (provided to the Tribunal today,) giving the name of each maker of the statements against the letter of the alphabet as at page 37..

There will be no need for a hearing with the parties present. The Tribunal will deal with the exercise in deliberations.

The parties can make such further applications as they wish following the reasons being sent to them."

13. The Respondent was not happy with the directions that were made in that letter by the Tribunal, for two reasons. First, they felt it was important, as the Respondent alone would know the reason why the redaction was sought in relation to a particular statement, that they should be entitled to make submissions to the Tribunal, who might not otherwise be sufficiently informed as to such reasons, to inform or dissuade the Tribunal before they served the redacted statements on the other party and, secondly, and concomitantly, they opposed the idea that the parties could only make such applications following the Tribunal's provision to the parties of its reasons and the statements redacted accordingly.
14. The Respondent suggested in a letter dated 19 November 2002 an alternative method of arriving at the result, in accordance with the judgment of Wall J as they asserted it to be, which involved their having an opportunity for further input by way of submission to the Tribunal before the Tribunal made up its mind finally and disclosed the redacted statements to the Applicant's Solicitors. That proposal was not agreed to by the Applicant's Solicitors, in a letter dated 20 November 2002, and not agreed to by the Chairman in a letter sent by the Regional Secretary on his behalf dated 26 November 2002. The Chairman stated that he "does not agree with the respondent's contention that they have the right to indicate which documents should or should not be anonymised, redacted or excluded. This is a function of the Tribunal." The Chairman did not at that stage indicate why it was that the Respondent should not be in a position at least to put the Tribunal into a position in which the Tribunal was as fully informed as the Respondent.
15. The Respondent sought further to persuade the Tribunal to adopt the 19 November directions in a letter dated 27 November, and the Regional Secretary on behalf of the Chairman indicated that the Chairman's earlier letter stood, by a letter dated 29 November 2002. By a further letter from the Respondent's Solicitors a last attempt was made to dissuade the Chairman, by indicating that the Respondent was quite prepared to disclose the original witness statements alongside the proposed annotations, and pointing out that if the Tribunal were to send the statements which had been edited by them to both parties then that would effectively remove the Respondent's right within the judicial process to appeal to the Employment Appeal Tribunal and perhaps undermine the promise of confidentiality given by the Respondent to the witnesses who provided the statements. By letter dated 3 December 2002 the Chairman once again reiterated that it, the Tribunal, would exercise its judicial function in accordance with Wall J's judgment and as Mr Garside put it, "was not prepared to give assurances".
16. The Tribunal sent a letter to the Employment Appeal Tribunal, signed by the Chairman, dated 17 February 2003, which set out the background so far as the Chairman was concerned by way of comments on this appeal which the Chairman thought it appropriate to make, and concluded the letter as follows:-

"The Tribunal set aside half a day to fully consider, in deliberations, the original confidential witness statements and to form its view in accordance with the directions of the EAT. The Tribunal considered that was its function. It would then have invited the respondent's representative to comment upon the findings of the Tribunal. However it was not thought appropriate that assurances should be given to the respondent's representative.

17. The Respondent, not surprisingly, indicated that if that was what was proposed it might well meet their objection. They were, as they put it, in a letter of 14 April 2003 sent for the attention of the Chairman:-

"extremely glad to see that the Tribunal was intending to invite the Respondent's representative for comments upon their findings having taken time to deliberate upon the papers and the Directions of EAT"

and they indicated there was now real possibility that the appeal hearing could be avoided.

18. The Chairman, however, made clear through a letter sent on behalf of the Regional Secretary of the Tribunal dated 24 April 2003 that that was in fact not, despite appearances, what had been intended, and in paragraph 4 of that letter repeated the earlier position, namely that once the Tribunal had seen the original statements and made a decision on whether they should be disclosed, the parties would be informed of that decision and the reason for it, and that meant of course that the original worry of the Respondent that they would by then have been disclosed to the Applicants was not only not alleviated but was emphasised.
19. It is against that background that the Appeal was brought by Miss Crasnow on behalf of the Respondent, and the Appeal was expressed as being against the order of the Employment Tribunal of 11 December 2002 which reads as follows:-

"1 The respondents shall by 13 December 2002 provide the Tribunal with those witness statements of witnesses for which the respondents seek confidentiality.

2 The witness statements shall be in their original form with no deletions.

3 The failure of the respondents to comply with this order will be regarded as falling within the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 Schedule 1 rule 4(5), giving the Tribunal power to strike out the notice of appearance and direct that the respondent be debarred from defending altogether.

4 In the event of failure to comply with this order an oral hearing will be held to enable the respondent to show cause why its notice of appearance should not be struck out and it be debarred from defending altogether. …"

20. Thus it is apparent how firmly the Tribunal was standing by its position that the Respondent should have no opportunity to explain their suggestions for redaction before they were finally supplied and the confidentiality possibly breached by such supply to the Applicants. The appeal was in order to achieve in somewhat similar form the suggestions that the Respondent's Solicitors made in their letter of 19 November 2002. Such Appeal was put in on 13 December 2002.
21. An Order was made on paper by His Honour Judge McMullen QC on 10 February 2003, directing that the appeal be set down for a full hearing without need for a preliminary hearing and therefore directing the service of the Notice of Appeal on the Applicants. By paragraph 4 of the Order the following direction was made:

"Within 14 days of the seal date of this Order the respondent(s) must lodge with the Employment Appeal Tribunal and file an Answer, and if such Answer include a cross-appeal shall forthwith apply to the Employment Appeal Tribunal on paper on notice to the appellant for directions as to the hearing or disposal of such cross-appeal."

22. The purpose of that paragraph, which is now standard in the Employment Appeal Tribunal's Orders, at any rate since the new Practice Direction at the beginning of December, is in order to avoid a situation in which a Respondent can attach a possibly unmeritorious cross-appeal to an Appeal without the Employment Appeal Tribunal having had the opportunity to consider, either on a sift or on a preliminary hearing, whether there was any merit in it. It is no longer, if it ever was, the position that a cross-appeal goes through simply because an appeal is going through. It is apparent as we have now looked at the position today that had such an application been made in accordance with paragraph 4, subject to what we should say about time, leave would have been granted or the appropriate directions made for the Respondent's appeal to be heard, as it in fact has been, at the same time as the appeal today. But unfortunately no such application was made, and we do take this opportunity to emphasise the importance of compliance with this Order, and with this ordinary direction, by respondents.
23. The other aspect with which we dealt by way of preliminary point, we have referred to briefly by reference to the word "time". When the answer was put in within the appropriate period by the Respondent it was indeed accompanied by a so-called cross-appeal, and the cross-appeal reads as follows:

"The Respondents cross-appeal from the decision at the Employment Tribunal as set out in the letter of 11^th November 2002, namely that the Employment Tribunal 'is required to maintain the confidentiality of the makers of the statements'".

The letter of 11 November 2002, which we have already cited, was the letter in which the Tribunal set out its intention to comply with the direction, as it saw it, of the Employment Appeal Tribunal per Wall J.

24. On its face and without further consideration, but looked at in simply general terms, that does not look like a cross-appeal. The Respondent as appellant was, subject to what we shall say hereafter, appealing against the Order of the Employment Tribunal that they must jolly well get on with serving their redacted statements and take no more time corresponding with the Chairman, and they were dedicating themselves towards dealing with the mechanics, whereby, as they saw it, compliance with that order should not, contrary to the Tribunal's indications, lead to the risk of unfortunate early inappropriate disclosure to the Applicants. However, what the Applicants were seeking to do, on the face of it, by this "cross-appeal" was to re-open the issue as to whether the statements should be redacted on that basis at all.
25. In the course of argument before us today, Mr Laddie persuasively showed us that nevertheless in fact it can be said that this cross-appeal was a cross-appeal. We return to the precise terms of the Respondent's Notice of Appeal, which by paragraph 3 reads as follows:

"3. The Appellant appeals

(a) on a question of law arising out of proceedings before an Employment Tribunal sitting at Newcastle on 8 November 2002 and

(b) against the Tribunal Order of 11 December 2002

The decision appealed against is that the Appellant should disclose confidential witness statements to the Tribunal without the benefit of a guarantee that the Tribunal would give the Appellant an opportunity to comment on the anonymising/redacting exercise it had carried out before disclosing the statements to the Respondents."

In fact, as Miss Crasnow made clear today, paragraph 3(a) is superfluous, and the reality is that the Respondent was appealing in respect of the Order of 11 December 2002, to which we have referred; and she would not have pursued, and indeed has not mentioned in her Skeleton Argument, the content of paragraph 3(a), save of course to background; but nevertheless there it was in her notice of appeal, and on that basis alone Mr Laddie has satisfied us that this can be said to have been a genuine cross-appeal, and consequently questions of time do not arise. However, we do take the opportunity for the benefit of employment law practitioners generally to emphasise that, but for paragraph 3(a), this would have been a situation in which there was an appeal against an Order of 11 December 2002 sought to be coupled with and followed by a purported cross-appeal in respect of an alleged Order of 11 November 2002. That is not in our judgment a cross-appeal. That is an independent appeal. A cross-appeal can only arise, in our judgment, out of the same Order as was appealed. This would have been an independent appeal which, if runnable, it would be appropriate to have dealt with at the same hearing, as in fact has occurred. But, in our judgment, if it is desired to appeal by way of such an independent appeal a different Order from that which the other party has appealed, then time for such independent appeals runs from that original order. That must make sense, because otherwise the simple fact that an appellant has appealed an order of December 2001 could enable a respondent to "cross-appeal" an order of December 1999. There would be no end to it if time ran for any old appeal against any old order in the same proceedings, simply because an appellant has appealed one particular order. Consequently, in our judgment, a genuine separate appeal, as this would have been but for the point on which have been persuaded by Mr Laddie, has its own time limit. It is quite apparent that that is a logical answer in this case too, because, as will be seen when we analyse the story in a little more detail, the Applicants were not seeking to challenge either the Employment Appeal Tribunal judgment, or its putting into effect by the Employment Tribunal, until the Respondent put in their appeal, and if there had been a genuine appeal they would already have so appealed.

26. The course in our judgment would and should have been that consideration should have been given, or would be given, in an ordinary case, to whether a "cross-appeal" in respect of a different order was in time, addressing its own time limit, namely the time running from the Order complained of in the "cross-appeal". If such a "cross-appeal" is out of time, it may be that the existence of an appeal against a different Order on the same topic may well be a good justification for allowing an extension of time, and it may well be, in an appropriate case, that the extremely strict consequences of being out of time on such an appeal, such as are laid down in United Arab Emirates v Abdelghafar [1995] ICR 65 and Aziz v Bethnal Green City Challenge Co Ltd. [2000] IRLR 111, where of course without the appropriate time limit being complied with by an appellant there would be no appeal at all, would not be applied to a time-limit on such a cross-appeal.
27. It may thus in appropriate cases be a justification for an extension if there already is an appeal and no prejudice is caused to the appellant by an extension of time in respect of the cross-appeal. Good reasons will always have to be given, but it may be the existence of an appeal might of itself amount to an exceptional reason in an appropriate case. However it is apparent that this is another reason for proper compliance with paragraph 4 of the ordinary order, to which we have already referred, made either on a sift or indeed on a Preliminary Hearing, so that that question too can be addressed by the Employment Appeal Tribunal with the benefit of any submissions from the original appellant, who would of course have been served with notice, as the order requires.
28. As it happens, however, as we have indicated, that does not arise in this case, and all we need to do is to regret, and Mr Laddie has on behalf of those instructing him apologised in respect of, the non compliance with paragraph 4 of the Order; but in fact his appeal is a cross-appeal, in the circumstances to which we have referred, and so we do not need to conclude that there needs to be an extension of time. Had there needed to have been an extension of time, this may well have been a case in which it would have been appropriate to have granted it. In those circumstances his cross-appeal was valid, and notwithstanding non-compliance with paragraph 4 we concluded that it should be effective before us, and, with Miss Crasnow's co-operation, it appeared sensible to us that we should address it first.

The Cross-Appeal

29. His cross-appeal was put on a number of bases. What hardly featured in his argument, for understandable reasons, was that in some way the Order of 11 November 2002 misinterpreted the judgment of the Employment Appeal Tribunal by Wall J. That, no doubt, is strictly speaking the basis on which the matter gets before us at all. But the reality behind it, and that on which he spent the majority of his submissions, was an attack on the judgment of Wall J, and he put that on two bases:

1 that the judgment was ambiguous, and consequently ought to be revisited and/or the decision of the Employment Tribunal based upon it should be replaced by us, in taking the opportunity to resolve any ambiguity; or

2 the judgment was wrong and we should take the opportunity, particularly as it has in the meanwhile been reported, to revisit it, declare it to be wrong, and replace it with our own different view.

30. The background to both those arguments was his reference to the case of Nassé [1980] AC 1028, to which we have already referred, by virtue of its incorporation into Wall J's judgment. That was a House of Lords decision made on ultimate appeal from an Employment Tribunal in a sex discrimination case, and the exercise that was there referred to was one to be taken by an employment tribunal, rather similarly to that taken by a Court, whereby a conclusion could be reached by the tribunal, after looking at the documents, as to whether disclosure was necessary; and it was against the background of the existence of confidentiality, not as a result of any particular factual evidence such as for example here, where it was asserted that the informants were afraid of intimidation or retribution, but by virtue of policy questions arising out of the existence of confidential reports in areas such as racial equality.
31. Mr Laddie pointed in particular to passages in the speech of Lord Wilberforce, and especially at paragraph 928H following:

"2 There is no principle in English law by which documents are protected from discovery by reason of confidentiality alone. But there is no reason why, in the exercise of its discretion to order discovery, the tribunal should not have regard to the fact that documents are confidential, and that to order disclosure would involve a breach of confidence. In the employment field, the tribunal may have regard to the sensitivity of particular types of confidential information, to the extent to which the interests of third parties (including their employees on whom confidential reports have been made, as well as persons reporting) may be affected by disclosure, to the interest which both employees and employers may have in preserving the confidentiality of personal reports, and to any wider interest which may be seen to exist in preserving the confidentiality of systems of personal assessment. ….

4 The ultimate test in discrimination (as in other) proceedings is whether discovery is necessary for disposing fairly of the proceedings. If it is, then discovery must be ordered notwithstanding confidentiality. But where the court is impressed with the need to preserve confidentiality in a particular case, it will consider carefully whether the necessary information has been or can be obtained by other means, not involving a breach of confidence.

5 In order to reach a conclusion whether discovery is necessary notwithstanding confidentiality the tribunal should inspect the documents. It will naturally consider whether justice can be done by special measures such as "covering up", substituting anonymous references for specific names, or, in rare cases, hearing in camera."

32. Mr. Laddie also referred to Lord Salmon's speech at 935C – 936D. He pointed out that, as Wall J made clear himself, the Appeal Tribunal in this case did not have the documents before it, and therefore had not itself gone through the Nassé exercise of working out what was and was not necessary for disclosure; and he submitted either that Wall J's judgment was ambiguous in, on the one hand, enjoining the Employment Tribunal, to which the case was being sent back, to carry out the Nassé exercise, and, on the other hand, ordering that there should be no disclosure in respect of any matters where there was a risk of disclosure of identity, or that it was simply wrong in making the order that it did in paragraph 20, in the light of Nassé, by fettering the discretion of the Employment Tribunal to carry out what he called the Nassé exercise.
33. Miss Crasnow did not agree that Wall J's judgment in Asda was either wrong or ambiguous. She pointed out that the judgment in plain terms in paragraph 20, although it recites, as part of the background, as it must, the existence of and reasoning in Nassé, sets out the requirement that the Tribunal should carry out:

"the exercise identified in Nassé in accordance with the ruling 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."

34. She submits that that is not ambiguous. She also submits that it is not wrong. She submits that the Employment Appeal Tribunal, notwithstanding that it did not look at the documents, was entitled to be informed by two important distinctions in this Asda case from the case in Nassé:-

First, that this was not a discrimination case where the whole background to the factual matrix and context would have to be examined to see whether there had or had not been discrimination, but, a case where, on the findings of the Employment Appeal Tribunal, and, as she submitted correctly, in the light of Birchell and Linfood, the question was not whether the facts were in fact as they were stated to be in the witness statements of the informants but whether the employer acted reasonably in reaching the conclusion it did in the course of an investigation based on those statements.

Secondly, that there was in this case a specific factual background of intimidation which was found by the Employment Tribunal below, and taken for granted by the Employment Appeal Tribunal, which did not exist in the Nassé case, and which would entitle the Employment Appeal Tribunal to reach the decision it did.

35. Assuming that the judgment in Asda was ambiguous, Mr Laddie invited us to resolve any ambiguity. We are entirely clear that the judgment is not ambiguous, and that paragraph 20 is quite clear; and that Miss Crasnow is right as to the fact that Nassé was considered by the Employment Appeal Tribunal and referred back to in paragraphs 19 and 20, but that indeed, as Wall J made clear himself through the medium of the letter of 17 July, the conclusion was set out in paragraph 20, whatever had been the thought processes which led to it, and that the reference to the Nassé exercise was not intended to detract from the direction to the Employment Tribunal that nothing was to be disclosed which in any way identified the complainants.
36. But Mr Laddie, as we have indicated, submits that the judgment in Asda, if unambiguous, was wrong, and wrong because it misapplied Nassé, or overlaid Nassé, thereby fettering the discretion of the Employment Tribunal. He submitted, for example, the following possible hypothetical situation. What if in the course of one of these informants' statements that informant said "I made a complaint against one of the Applicants a few weeks or months ago, but of course that is of no relevance to the matters I am now speaking of", or "a complaint was made against me by one of the Applicants because of bad workmanship but I bear no grudge, and it has got nothing whatever to do with the facts I am now recording." If there were such matter included in a statement Mr Laddie submits that that would be a matter for the Employment Tribunal to consider, and a balancing exercise carried out, in which it was kept in mind by the Tribunal that confidentiality was not an absolute bar to disclosure of what is otherwise necessary to be disclosed; if, for example, he was to identify a possible motive for a statement having been made by the informant, which might disappear if, as would inevitably be the case, it had to be redacted in order to ensure anonymity.
37. Mr Laddie submits that the conclusions by the Employment Appear Tribunal in Asda could not possibly have been intended to have fettered the discretion of the Employment Tribunal in that regard, and was wrong in so far as it did. It is right to say that he did not appear himself before the Employment Appeal Tribunal and it does not appear that any such argument was run before the Employment Appeal Tribunal, but if it was so run it plainly did not find favour, because of the unambiguous conclusion to which we have referred.
38. Mr Laddie submits that there should be jurisdiction for an Employment Appeal Tribunal to intervene and interfere and overrule one of its own earlier decisions, or indicate that it should not be followed, in the event that we are of the view that an earlier decision of this Tribunal in the same case is wrong. He sought to draw an analogy with the undoubted, although exceptional, jurisdiction of this Tribunal not to follow an earlier decision of this Tribunal if it concludes that that decision is wrong, and he refers to Secretary of State for Trade and Industry v Cook [1997] IRLR 150, in which Morrison P at paragraph 3 pointed out that the EAT is not bound by its previous decisions, although they will only be departed from in exceptional circumstances, or where there are previous inconsistent decisions.
39. But that of course is not, as he accepted in the course of argument in the end, at all in point here. We are not being asked simply to differ from the earlier decision in Asda. We are being asked to overrule it, to cause it to be disregarded and replaced, in the very case in which it was made.
40. The only conceivably analogous situation, which we put to Mr Laddie in the course of argument, was the recently enunciated jurisdiction of the Court of Appeal in Taylor v Lawrence [2002] 3 WLR 640. In that case a five Judge Court of Appeal, headed by Lord Woolf CJ and Lord Phillips MR, concluded that, exceptionally, the Court of Appeal would be prepared to re-open one of its own earlier decisions. The Court of Appeal had a residual jurisdiction to re-open appeals, which were linked to a discretion which enabled the Court of Appeal to confine its use to cases in which it was appropriate for the jurisdiction to be exercised.
41. It was recognised by the Court of Appeal that there was a tension between a Court having such a residual jurisdiction and the need to have finality in litigation, and, in recognising that it had such jurisdiction, very substantial limits were placed upon its exercise by the Court of Appeal, and indeed a special new procedure was recommended to be introduced, which in fact has subsequently been introduced, in paragraph 56 of the judgment of Lord Woolf CJ. That was a case in which, unknown to the parties, there was a fact relating to the Judge which could be said to have given ground for apparent bias; and it was that which allowed the Court to consider the opening up of the judgment.
42. In paragraph 55 of the Judgment of Lord Woolf CJ he said that bias was one such situation in which the Court might exercise this wholly exceptional opportunity to re-open jurisdiction, but it appears to us that there is one very substantial difference between this new exceptional jurisdiction of the Court of Appeal, notwithstanding the importance of finality of litigation, to re-open its judgments, and that suggested for the Employment Appeal Tribunal here. The Court of Appeal is in practice the highest Court in the land. In Lord Woolf CJ's judgment he said as follows at paragraph 45, having referred to words of Lord Browne-Wilkinson in Pinochet [2000 1 AC 119], in which the House of Lords had, again exceptionally, indicated the occasional right for them to re-open matters previously decided, the House of Lords being undoubtedly the final appellate court (and that of course is another situation in which it was discovered, after the original decision, that there was ground for apparent bias on the part of the Court):-

"Those words of Lord Browne-Wilkinson are clearly focussing on the special position of the House of Lords as a final appellate court. They cannot therefore automatically be applied to this court. Nonetheless, as we have pointed out, in some cases no appeal will lie to the House of Lords and in others an appeal to the House of Lords will not be appropriate. Thus for practical purposes in many cases this court is the final court of appeal. The difference between this court and the House of Lords is therefore one of degree and it has changed over the years. While there will be situations where this court could and will say, if it has this jurisdiction, that the would-be appellant must seek to appeal to the House of Lords, there are other situations where to require this would be wholly inappropriate because there would be no realistic prospect of the House of Lords hearing an appeal."

43. Lord Woolf CJ continued as follows:-

"46 The fact that the House of Lords is generally the final court of appeal and the Court of Appeal is generally an intermediate court of appeal is not the only distinction between the two tribunals. The approach which the Court of Appeal adopts to giving permission to appeal to this court differs from the approach which the House of Lords adopts when deciding whether to accept an appeal. In giving permission to appeal to this court, this court is primarily concerned with correcting injustice in the particular case to which the application for permission relates. If there is a sufficient prospect for the appeal succeeding, permission to appeal will normally be given as a matter of course. In the case of an appeal to the House of Lords, it is not enough to show a sufficient prospect of the appeal succeeding. The would-be appellant has to show in addition that the case is of such importance that it justifies the attention of the House of Lords.

47 It is the House of Lords which is the best judge of whether a particular case meets this test. It is the House of Lords which is the best judge whether its limited judicial resources are properly deployed in hearing a particular appeal. That is why this Court rarely exercises its jurisdiction to give permission to appeal to the House of Lords.

44. Lord Woolf CJ concluded in paragraph 48 that in those cases when it is obvious that permission is unlikely to be given to appeal to the House of Lords:-

"it would not be in accord with the purposes for which this court was established for it not to accept the reality of the situation and to decline to recognise a jurisdiction which it would otherwise have because there is a theoretical, though not a real, right of appeal to the House of Lords. In such a case this court is for practical purposes the final court of appeal and if this court is not prepared to ensure justice is done, justice will not be done."

45. That is, on the facts of this case, many, many miles away from the situation which we are facing:

(1) We are not by any stretch of the imagination the final Court of Appeal. There is a perfectly proper and regularly used avenue of appeal to the Court of Appeal, and that is a completely different situation from the extremely rare appeals from the Court of Appeal to the House of Lords, which have the further problem, as indicated by Lord Woolf, that there has to be some added impact of public importance. Right or wrong, many of our decisions are regularly appealed, or at any rate permission is sought to appeal them, to the Court of Appeal.

(2) There was nothing whatever to have prevented the unsuccessful respondents in this case appealing the judgment of Wall J to the Court of Appeal. Even if there had been some doubt in their mind as to what was meant, and thus they might have been able to have justified some delay by way of obtaining an extension of time for permission to appeal to the Court of Appeal, they would and could certainly have done so, and applied for such extension of time, after receiving the letter of 17 July. We agree with Mr Laddie that there is no self standing impact of that letter of 17 July. It does not stand instead of, or substitute itself for the judgment of Wall J, but if there was any doubt as to the meaning of the Employment Appeal Tribunal's judgment, and we have already indicated that we do not believe there was, that was the stage at which it became absolutely plain to the Applicants that they had to appeal it if they had wished to challenge it.

(3) In any event, they did not challenge it, they have never challenged it, and have never sought to take it to the Court of Appeal, and indeed but for the fortuity of the precise formulation of the Notice of Appeal in this case, they would even have been out of time to cross-appeal the consequential order of the Employment Tribunal of 11 November, which as we have already indicated in any event was simply putting it into effect.

(4) If there were any ground for reconsideration of this question, it would not be based on apparent bias, or discovery of any new matter, or of any fraud which has taken its time to be revealed, but would be because a point, if it was not argued, was not argued. We have not in any way moved from the principles of the case of Kumchyk v Derby City Council [1978] ICR 1116, so far as our own ordinary jurisdiction is concerned, namely that we do not ordinarily allow matters to be argued on appeal before us which were not argued at the original Tribunal. How much more so would we not allow this alleged new exceptional jurisdiction of setting aside earlier decisions of this Tribunal to be exercised on a pseudo-Kumchyk basis?

46. We are entirely satisfied that, even if we concluded that the Appeal Tribunal's decision in Asda, i.e. in this case, in October 2001 were wrong, we do not have, and do not wish to have, and do not feel it necessary out of justice to litigants to have, any kind of similar exceptional jurisdiction to that taken by the Court of Appeal in Taylor & Lawrence. We think it very important that this Tribunal should be able to carry on with its job as speedily as it can by way of appeal from Employment Tribunals, and, once it has decided the matter, to leave it where it is, and that the aim of this Tribunal to give as speedy justice as possible should not be put at risk by cases coming back and back to it, unless of course on remission to it as a result of a successful appeal to a higher Court.
47. In any event, we are not persuaded that the decision of the Employment Appeal Tribunal was necessarily wrong. Because of the view we have taken, both as already indicated, and as about to be communicated in this judgment, we have not heard full argument as to whether it can be said that this Tribunal erred in relation to its application of the decision in Nassé to the facts before it. It may be that, if and insofar as the matter comes before this Tribunal again in another case, it will be open to this Tribunal to look again at the judgment in Asda as reported. But we are clear that, in relation to the applicability of the facts of this case, the hypothetical scenario which Mr Laddie puts forward does not cause the parties the anticipated difficulties in effecting the decision of the Employment Appeal Tribunal.
48. The conclusion of Wall J to which we have referred, and which we repeat again for convenience, was as follows:

"that in carrying out the exercise by the Tribunal 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."

What that means is that the Respondent will not be required to disclose any statements which may lead to identification of the informants. If, on the assessment by the Tribunal, or indeed on the consideration by the employers themselves, prior to submitting the statements for conclusion by the Tribunal, such hypothetical scenarios as we shall summarise in a moment arise, it is, on the basis of the judgment of Wall J and indeed of our Tribunal, open to them not to rely on a statement, and thus not to put forward for redaction a statement, where the redaction and anonymisation of the statement might lead to unfairness or indeed to a misleading position. Thus, if for example one of the informants said in a statement that he had previously made a complaint against one or other of the Applicants, or an Applicant had made a complaint against him, or he had had a personal contretemps with one or more of the Applicants which had had nothing to do with the events in question, which, if disclosed in full, might lead to the possibility that a line of cross examination might be able to investigate some suggested motive, but which would disappear by virtue of anonymisation, then it would not be appropriate for the order of Wall J, made without sight of the statements, to be used for that purpose. We have no doubt, having had a brief opportunity of looking at the original and redacted statements, that compliance with this course will not cause any difficulty on the facts of this case, but we leave the matter to the good sense of the Respondent, and in due course if necessary to the view of the Tribunal. It appears to us clear that any order in accordance with Wall J's judgment, any order that is made for disclosure against the Respondent, must not involve the need for them to disclose anything which may lead to identification of the informants, and if therefore there are matters in the statements which fall foul of the indication we have given, namely as to where a real Nassé conflict might arise, then the only course would be for the Respondent not to be in a position to rely on them, by not in fact disclosing them, as indeed they are not ordered to do by the decision of the Employment Appeal Tribunal, which is entirely facilitative. In those circumstances, we dismiss the cross-appeal, and clarify what we believe to be the underlying position as made clear in Asda in that way.

49. All that is left is the relatively mechanical question arising out of the appeal itself, where, as we indicated really by the way in which we described the history before the Tribunal, we conclude that insufficient attention has been given by the Tribunal to the sensitive nature of the confidential information in this case. It is plainly the case, on what we understand of the facts, that the allegations of drug taking and violence are serious, and that the fears of witnesses, whether or not justified in the absolute sense, are real, and the concerns of the Respondent are real, and the obligations of the Respondent have been upheld by this Appeal Tribunal in October 2001. Of course it is right that the Tribunal has the final say, subject to appeal, but the Tribunal cannot be in a position to make as informed a judgment as the Respondent would be. The course that we propose, having heard arguments from both Miss Crasnow and Mr Laddie which have been in fairly short form, because with one exception in the end there was hardly any disagreement between them, is as follows:

(1) The Respondent should disclose to the Tribunal, on the basis that they will not be disclosed to the Appellants in any circumstances, the original statements, the Respondent's proposals for redaction, which of course will include certain grammatical re-writing in order to cope with redactions, and their explanation of the proposed changes and redactions, so that the Tribunal will be put in a position fully to understand those proposals. Again from the short opportunity that we had and took, with both sides' agreement, to look at the presently proposed redactions, there are some which would need explanation to us before we could understand why they were needed. We also take the opportunity to say that not quite all the grammatical changes have been made, so far as we can see. It is essential for the Tribunal to be given the proper information, so as to put them into a proper position to make their decision, and they cannot expect to know as much as the Respondent knows as to why certain matters cannot be disclosed because they may lead to identification. But the Tribunal will then make its decision so informed.

(2) The next stage was the only stage at which there was disagreement between Miss Crasnow and Mr Laddie, by the time the matter finally came to be argued out. Where there was no disagreement by the end was as to the point which appears to have caused the Tribunal most concern, namely that the Respondent should be given an opportunity to comment on the proposed redactions by the Tribunal before they were finally supplied to the Applicants. It appears to us that that does not in any way derogate from the final decision being with the Tribunal, but enables any misunderstandings, or inadequate supply of information by the Respondent to the Tribunal in the first place, to be ironed out, and dealt with, and it appears to us essential for the exercise to be carried out properly that this last opportunity to comment should be given to the Respondent. Where the disagreement came was that Mr Laddie submitted that, provided that he can obtain the necessary instructions from his clients, the Applicants, that he may see confidential matters supplied by the Respondent and/or by the Tribunal, without passing that information on either to his instructing solicitors, or in particular to his clients, that he should be in a position to see the proposals at that stage, in order to make what one might call the comments of an objective and experienced advocate and expert in the law of evidence, from the point of his clients, but without consulting them. That would of course not enable him to obtain any specific instructions from his clients in order to counter what was asserted by the Respondent, but would at least enable him both to understand the nature of the redactions fully, so that when he came to cross examine the eventual hearing he would be able to do so without knowing contravention of the decision made by the redacting Tribunal, and also be able to make partisan but uninformed criticisms and suggestions in relation to the final form of the redactions.

50. Miss Crasnow submits that there is no benefit to be obtained by the involvement of Mr Laddie, assuming he obtained those instructions, over and above the role of an independent Tribunal carrying out exactly that exercise.
51. We conclude that there is advantage, and an advantage not only in terms of the Applicants feeling more confident that they have had a fair exercise carried out in the matter which will clearly concern them, but also in the interests of both the Respondent and the efficiency of the eventual hearing if this is carried out in a context in which there has been the opportunity of partisan comment before the redactions are finalised; and we conclude that, provided that Mr Laddie is willing to give, and has instructions to give, in due course that undertaking, the Tribunal, when supplying the proposed order it will make to the Respondent, should also supply, on the basis of the prior undertaking, to Mr Laddie alone (this does not apply to any replacement or substitute Counsel, and certainly if Mr Laddie were disinstructed it would not apply) the similar information, coupled with the original witness statements and the original submissions by the Respondent, so that Mr Laddie can understand the bases of the proposals by the Tribunal, and of course any objections to those proposals which may be made by the Respondent. This is not intended to give to Mr Laddie any locus for himself to appeal against the order made by the Tribunal; the only party which might have the opportunity to appeal (although, as Mr Laddie has himself pointed out, as it would be an appeal against an exercise of discretion it would be unlikely to be a very easy one) would be the Respondent, but Mr Laddie would have the opportunity to take part in this exercise by way of making comments, and of course if the Respondent were to seek to appeal then again, continuing the same undertaking, he would be able to represent his clients in opposing any such appeal if he were so instructed, and saw fit. Further of course Mr Laddie has pointed out that his involvement, having given the undertaking, might even involve or result in the need for any such appeal being avoided, if for example he felt able to agree a change to the Tribunal's proposals, which otherwise might have needed an appeal to challenge them.
52. With that one exception therefore, by way of the addition of the role of Mr Laddie, we agree that the course which Miss Crasnow has proposed by way of challenge to the Tribunal's decision of 13 December should be allowed. It follows that in those circumstances the last matter that needs to be considered is whether the same Tribunal should hear the case as would have been involved in the exercise of redaction. If Mr Laddie is in a position to give the undertaking and does so, and has therefore been involved in the exercise of redaction to the extent we have indicated, we conclude that his clients will be protected in that regard, and we think it is better that a different Tribunal hears the case than carried out the redaction, in the interests of an apparent fairness on all sides. If however Mr Laddie does not take part, for whatever reason, in the exercise of redaction, then he prefers that it be the same Tribunal hearing the case, and as at the moment we can only see prejudice to his clients, and not to the Respondent, by virtue of the Tribunal hearing the case having seen matters in the witness statements which they were being required to put from their mind, then as it is Mr Laddie who urges us that, in those circumstances, he prefers to have the same Tribunal hearing the case, we conclude that that should be how the matter should be pursued. But we indicate that it appears to us preferable that it should be a different Tribunal, and hope therefore that that can be how the matter works out, i.e. Mr Laddie has the opportunity to give and gives the undertaking to participate on a confidential basis, and there is then a different Tribunal which hears the case at the end of the day.
53. Postscript After further submissions an order was made which allowed a liberty to restore to provide for the possibility of Mr Laddie seeking leave to appeal against any redaction order.