United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR T LINDEN (of Counsel) Instructed by: Messrs DLA Solicitors Fountain Precinct Balm Green Sheffield South Yorkshire S1 1RZ
For the Respondent	MR S GORTON (of Counsel) Messrs Carter Hodge Solicitors 18 Hoghton Street Southport Merseyside PR9 OPB


 


HIS HONOUR JUDGE J McMULLEN QC

1. This case is about an Employment Tribunal procedure and the application of Articles 6 and 8 of the European Convention on Human Rights. We will continue to refer to the parties as Applicant" and "Respondent".

Introduction

2. It is an appeal by the Respondent in proceedings against the Decision of an Employment Tribunal sitting at Liverpool, Chairman Mr D Reed. We use our power under Rule 35 of the EAT Rules to correct the date and the name of the Respondent on the face of the Tribunal Decision, to be 12 February 2002, and Avocet Hardware PLC. The Decision was promulgated with Extended Reasons on 15 March 2002. The parties were each represented by solicitors. The Applicant claimed unfair dismissal; the Respondent contended that the dismissal was for gross misconduct and was fair.
3. The essential issue, as defined by the Tribunal, was to decide on the admissibility of a crucial piece of evidence. At the opening of the hearing, therefore, when the Applicant first introduced the subject, the Employment Tribunal turned the substantive hearing into the trial of a preliminary issue. The Employment Tribunal found that permitting the Respondent to rely upon evidence produced as a consequence of an intercepted telephone call would be an interference with the right of the Applicant to respect for his private life, in breach of Article 8 of the European Convention on Human Rights.
4. It is common ground before us that the Tribunal has decided that the evidence in question cannot go in, directly or indirectly, and since it adjourned its hearing, the Applicant still has to bring his case. The reality is that there is only one decision that it can make, i.e. that the Respondent unfairly dismissed the Applicant. The Respondent appeals against the finding on the preliminary point on grounds set out in a Notice of Appeal, a Skeleton Argument, and submissions today
5. Our account of the facts is tentative, since there has been no substantive hearing. The Respondent is engaged in the sale of hardware; the Applicant was employed by it as a tele-sales operative from 14 September 1998 to 12 June 2001, when he was dismissed. On his case, on 8 June 2001, the Applicant had made a telephone call to a customer who he had known for some time, and with whom he had got on well. The call was overheard by the interception of a telephone link by a relevant manager. A complaint was made about what the Applicant said; the Applicant, in his Originating Application, said this:

"… the complaint being made against me was that I had commented that my Employer did not pay its bills, gave bad service and that the computer system I was operating was "crap". I said that the conversation had not been serious, that the customer had not taken it as such and that matters had been taken entirely out of context."

In other words, the Applicant is responding to the allegation against him and it appears to be an admission that the conversation did indeed take place. In due course, the Applicant was subject to an investigation; the Respondent contacted the customer, concerning the complaint and the Applicant was in due course dismissed for gross misconduct.

6. He continued to assert in his Originating Application that the customer confirmed that whatever comments he may have made to him during the conversation, they had been taken entirely out of context and that the customer was aware that they were not made seriously. The Respondent regarded the issue as serious, and he was dismissed on the ground of gross misconduct. He was given a full opportunity to present his case, and the dismissal, it was said, was fair in all the circumstances.

Employment Tribunal findings

7. The Employment Tribunal directed itself by reference to the Regulation of Investigatory Powers Act 2000, section 1 and Regulation 3 of the Telecommunications Lawful Business Practice Interception of Communication Regulations 2000, especially Regulation 3(2)(b). It also considered Article 8 of the European Convention on Human Rights, scheduled to the Human Rights Act 1998.
8. It found that the Respondent was in breach of the regulatory regime, since contrary to section 1 of the Act, and section 3(2) of the Regulations, the Respondent had not notified the Applicant that his telephone calls had been monitored. The Regulation requires that a system controller should make reasonable efforts to inform every person who may use the telecommunications system that communications transmitted by means of the telephone may be intercepted. The Tribunal decided that not all reasonable efforts had been made. There is no challenge to that finding before us.
9. The Tribunal thus concluded that the interception of the conversation with the customer was unlawful, and that the first part of Article 8(2) of the Convention was not satisfied. It went on to hold that even if the interference had been in accordance with the law, the Tribunal would have concluded that it was not necessary, in a democratic society, for the interception to have occurred. The Tribunal pointed out that what the Respondent was doing was keeping an eye on the general behaviour of employees, which, although it was a genuine concern on the part of the Respondent, did not overrule the right to respect to a private life under Article 8. The Tribunal therefore took the view that the Tribunal would be interfering improperly in the right under Article 8, if it allowed the evidence to be put in, whether directly or indirectly.
10. It should be noted that the Tribunal has there related the duty which it has to ensure that there is no violation of a person's right, to the violation which occurred at the hands of the Respondent.

Employment Tribunal procedure

11. The relevant law which it was considering was section 98 of the Employment Rights Act 1996. Sections 98(1) and (2) require the Respondent to show the reason for dismissal. As is normal practice, the Respondent would go first, present its evidence, and the first decision the Tribunal would be required to make, when it retired after hearing all the evidence, was whether the Respondent had proved, on a balance of probability, what the reason for the dismissal was and whether it was potentially fair.
12. The second stage is to consider whether, in the light of the reason given by the Respondent, it had acted fairly or unfairly in dismissing the Applicant, pursuant to section 98(4). If the employer did not satisfy the Tribunal as to the first stage, it would not be required to consider section 98. Thus, as a matter of procedure, evidence would have to be led from the Respondent as to the reason why it decided to dismiss the Applicant, and, of course, that would relate to the intercept material.
13. The procedure of the Tribunal is regulated by the 2001 Regulations. Regulation 10 contains the overriding objective to deal with cases justly in the exercise of all its powers in the 2001 Rules, scheduled thereto, including ensuring that the parties are on an equal footing, and dealing with the case in the ways which are proportionate. It is required to give effect to that overriding objective in what it does. Under Rule 11, the Tribunal is given the following power:

"The tribunal shall, so far as it appears appropriate, seek to avoid formality in its proceedings and shall not be bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before the courts of law. The tribunal shall make such enquiries of persons appearing before it and witnesses as it considers appropriate and shall otherwise conduct the hearing in such manner as it considers most appropriate for the clarification of the issues before it and generally to the just handling of the proceedings."

14. The Human Rights Act, of course, applies to an Employment Tribunal: by virtue of section 6(3) it is a public authority and it must therefore observe section 6(1), which provides that:

"It is unlawful for a public authority to act in a way which is incompatible with a Convention right."

Remedies are available in respect of a Tribunal or judicial officer who acts incompatibly and it must be remembered that by section 9(3) in respect of a judicial act done in good faith, damages may not be awarded except in respect of matters under Article 5 of the Convention, which do not apply here.

15. The relevant Articles, for the purposes of our case, are Articles 6 and 8, which provide as follows:

"1. In the determination of his civil rights and obligations or of any …..everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

Article 8.1:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

The arguments

16. The Respondent's case is that the Employment Tribunal erred in that it held that it was itself obliged to respect private life accorded by Article 8.1. It will be noted that the Respondent did not advance any argument that the conduct in the Applicant's case fell outside the protection of Article 8.1 as a matter of substance, it being accepted that telephony is a form of correspondence, protected by Article 8. Mr Linden did not argue that the Applicant's conversation in working time, on working premises, on the Respondent's equipment, with a customer, where he represented the Respondent, was not to be regarded as private, within the meaning of Article 8. It was contended that the Tribunal had erred in failing to distinguish the breach by the Respondent of the regulatory regime, and the effect of allowing the evidence of that upon the Tribunal's duty to act compliantly, pursuant to section 6 of the Human Rights Act, with the Applicant's human rights.
17. The Respondent further contended that if the right were engaged, under Article 8, then the Tribunal would be acting in accordance with the law if it were to allow the evidence to go forward and that such evidence would have been called, since it would be necessary in a democratic society for it to have been put before the Tribunal as part of the full hearing.
18. The Applicant contended that the approach of the Tribunal was correct, by reference to the way in which the Tribunal had translated the obligation in Article 8 to itself. Mr Gorton pointed out that relevant evidence can be, and sometimes is, excluded by Tribunals, for example when material is produced late, and there is nothing surprising in the Tribunal exercising its decision to exclude material which had been adduced by the Respondent in breach of its duty, under the RIPA regime.

Conclusions

19. In our judgment, the submissions of Mr Linden are correct. We turn first to the submission that the Respondent is not a public authority. It is clear from the language of Article 8.2 that the Article is addressed to public authorities. In Niemietz -v- Germany [1992] 16 EHRR 97 the European Court of Human Rights considered a complaint by a German lawyer whose offices had been searched by police with a search warrant, issued out of Munich District Court. The Court made a number of findings in relation to the kind of material which constituted correspondence, for the purpose of protection and held, inter alia, that the fact that correspondences was of a professional nature in no way rendered Article 8 inappropriate but that the interference which had occurred with his right was legitimate under Article 8.2, since it was intended to protect the rights of others and to prevent crime. The Court thus accepted interference, but not a breach. In paragraph 31 it said this:

"More generally, to interpret the words 'private life' and 'home' as including certain professional business activities and premises would be consonant with the essential object and purpose of Article 8, namely to protect the individual rights against arbitrary interference by the public authorities."

In our judgment, that clearly expresses the public nature of the approach to cases under Article 8. It applies to public authorities. See also paragraph 37, where there is again a reference to the public authorities.

20. It seems that that is a complete answer to the case the Employment Tribunal was making. It assumed to itself the wrongdoing of the Respondent, and in a well-intentioned desire to avoid replicating the wrongdoing, decided not to allow itself to hear evidence upon which the Respondent relied. That is an error which affected the whole of the Employment Tribunal's thinking, as evidenced by a number of references to its duty. It must be recalled that it is not the Tribunal which has caused the intercept or a breach of the regulatory regime. It would also be recalled that in due course, the Respondent would wish to have its right to a fair hearing vindicated by the ability to bring forward its defence to the Applicant's claim of unfair dismissal. Thus we hold the Tribunal erred in its approach to Article 8.
21. In Regina -v- P [2002] 1 AC 146, the central issue was whether material adduced in the course of telephone intercepts should be excluded under section 78 of the Police and Criminal Evidence Act 1984. The speech of Lord Hobhouse focuses directly on the relationship between section 78 and Article 6. Section 78, of course, applies in respect of criminal proceedings. Lord Hobhouse considered the effect of an earlier authority Schenk -v- Switzerland [1988] 13 EHRR 242. In that case it was alleged that the complainant had hired an assassin to kill his wife and there was a tape recording of the conversation between the complainant and the man hired; it had been made by that man; the evidence was sought to be excluded. The European Court of Human Rights said, at paragraph 46:

"While Article 6 of the Convention guarantees the right to a fair trial, it does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under national law.

The court therefore cannot exclude as a matter of principle and in the abstract that unlawfully obtained evidence of the present kind may be admissible. It has only to ascertain whether Mr Schenk's trial as a whole was fair."

Lord Hobhouse said this at page 159:

"The court also emphasised the fact that the Swiss courts, besides having the recording, has the man as a witness to give evidence of what Mr Schenk had said during the telephone conversation. The court also rejected an argument that the use made of the recording, that is to say the use of it as evidence at Mr Schenk's trial, was contrary to article 8. The court said that the question was subsumed in the answer it had given to the complaint under article 6. Mr Schenk's complaints failed.

This decision of the European Court of Human Rights therefore provides a highly persuasive authority in favour of the Crown. The critical question is the fairness of the trial. Questions of the admissibility of evidence are not governed by article 8. The fair use of intercept evidence at a trial is not a breach of article 6 even if the evidence was unlawfully obtained but it. It is a cogent factor in favour of the admission of intercept evidence that one of the parties to the relevant conversation is going to be a witness at the trial and give evidence of what was said during it."

and at page 160, Lord Hobhouse noted the passage in the Schenk judgment in paragraph 38:

"The central question in the present case is whether the proceedings as a whole were fair."

22. Now, of course, Regina -v- P and Schenk were criminal proceedings. Criminal proceedings in England and Wales are regulated by judicial discretion under section 78 and a dense framework of protective codes covering the operations of the police and other security forces. The central question in every case where a complaint is made as to the method of obtaining evidence, and the use to which it is put, is whether the trial as a whole is fair. Lord Hobhouse's judgment was to subsume an Article 8 complaint under Article 6.
23. The conclusion is that this is, in reality, a complaint under Article 6, that the Applicant would not have a fair trial. Before we come to look at that in more detail, it is necessary to consider the rest of Article 8. From what we have said there is no breach of Article 8 by the Employment Tribunal, or by the Respondent, which is actionable. Action may be taken by the Applicant under the self-contained statutory tort mechanism, provided for the obtaining of damages by him against the Respondent, if he so chooses. The circumstances are relevant to the proceedings in the Employment Tribunal. But even so, the Decision of the Employment Tribunal would have to encompass a finding about the relevance of the words "in accordance with the law" in Article 8.2. This, as in three other Articles of the Convention, is a saving provision. It allows infringements of rights in certain circumstances which are closely regulated. It seems to us that if the material had been adduced before the Employment Tribunal, it would be in accordance with the law. The Tribunal has the discretion under Rule 11(1) to deal with its procedure so as to avoid formality; it has a duty under Regulation 10 to apply the overriding objective; it has considered the submissions of the Applicant and it therefore is acting in accordance with the law.
24. In Rosedale Mouldings Ltd -v- Sibley [1980] ICR 816 the question arose about the admissibility of a document adduced by the Applicants. When it was refused admission by the Employment Tribunal, the employers appealed to the EAT. Talbot J, with members, decided that the Tribunal had no right to exclude the document, since it was admissible at common law and probative of one or more of the other issues, and thus its decision to refuse to admit it was wrong in law - see page 822 and following.
25. It thus seems to us that the Tribunal had before it an admissible document which was probative of a central issue in the case. Mr Linden submitted that, unlike the position under the CPR, the Tribunal under the Rules is given no discretion to exclude admissible and probative evidence; contrast, for example, part 32 CPR(1) (2):

"The court may use its power under this rule to exclude evidence that would otherwise be admissible."

26. He contended that when Parliament drafted the 2001 Regulations, it had before it the authority of Rosedale, indicating that the Tribunal did not have such discretion, and it also noted that the CPR produced under the Civil Procedure Act 1997 had given such power to the civil courts. It must follow, he submitted, that the Tribunal did not have it and Parliament so noted. We were shown no authority where the Employment Tribunal had excluded relevant probative evidence. But between the oral and written judgment in this case, we have noticed a judgment of the Court of Appeal which Mr Linden did not draw to our attention, and which he assuredly could not have known of, and which may be thought to affect the soundness of that submission. In Noorani v Merseyside TEC [1999] IRLR 184 it was held that an Employment Tribunal always has a discretion to refuse to issue a witness order, and thus to exclude relevant evidence. Since the parties did not cite it, it should not form the decisive basis of our judgment. It does however strengthen the view we enunciated. The following two cases, which were relied on, indicate the superiority of the overriding objective, more or less the same in the CPR and the Employment Tribunal Regulations, to ensure a fair trial. We decided that the Employment Tribunal was wrong in principle in this case to exclude the relevant probative material since a fair hearing would be prejudiced.
27. In any event, Mr Linden submitted that the third limb of Article 8.2 was satisfied in the instant case, that is that it was necessary, in the interests of a democratic society for the material to be adduced. It follows from the working through of a decision by a Tribunal of competent jurisdiction to allow material to be put before it, that it is acting not only in accordance with law, but it is necessary in democratic society for its Orders to be carried out. This position has been made clear in Jones -v- University of Warwick [2003] EWCA Civ 151, a judgment given by the Lord Chief Justice, Lord Woolf, on behalf of the full Court. The facts are stark. A person injury claimant was filmed in her own home by a trespasser, hired by the insurer of the defendant employer. The Court was required to consider whether or not this material should be admitted. On behalf of the claimant, her Counsel accepted that he could not rely on Article 8 directly because the insurers of the defendant were responsible for obtaining the evidence by way of trespass, and it was not a public authority. His argument that this did not prevent him from relying on Article 8, directly, as a free-standing right, was rejected. He, like Mr Gorton today, argues that the Court has to exercise its discretion because it is a public authority under section 6(3) of the Human Rights Act to exclude the matter. In an engaging passage, entitled "Squaring the Circle", Lord Woolf said this:

"It is not possible to recognise in a totally satisfactory manner, the conflicting public policies which the district judge and the Deputy High Court Judge had to try to balance in this case."

He noted various submissions which had been made, including the desirability of avoiding trial by ambush.

28. He went on to hold, however, that the approach of the Courts had to be modified as a result of changes which had taken place in the law, that is the CPR and the introduction of the Human Rights Act. Citing Potter LJ in Rall -v- Hume [2001] 3 All ER 248, he said this:

"In principle the starting point in any application of this kind must be that where video evidence is available which, according to the defendant undermines the case of the claimant to an extent that would substantially reduce the award of damages to which she is entitled, it will usually be in the overall interests of justice to require that the defendants should be permitted to cross-examine the claimant and her medical advisers upon it."

Lord Woolf goes on:

"But Potter LJ then added that this does not apply if the conduct of the defendant amounts "to trial by ambush". The discretion on the court is not, however, confined to cases where the defendants have failed to make proper disclosure. A judge's responsibility today in the course of properly managing litigation requires him, when exercising his discretion in accordance with the overriding objective contained in CPR Part 1, to consider the effect of his decision upon litigation generally."

Dealing with the claimant's approach to the relationship between section 6 duties on public authorities and Article 8, Lord Woolf said this, citing Schenk -v- Switzerland:

"Once the court has decided the order, which it should make in order to deal with the case justly, in accordance with overriding objectives set out in Part 1.1 of the CPR in the exercise of its discretion under Part 32.1, then it is required or it is necessary for the court to make that order. Accordingly if the court could be said to have breached Article 8.1 by making the order which it has decided the law requires, it would be acting within Article 8.2 in doing so."

29. In our judgment, that applies in the instant case. Although, of course the Tribunal has not decided that it is right to introduce the material, we consider that it has erred in failing to admit it. Given our clear view of the law on the right to a fair hearing, we will not send this case back but in exercise of our power under s 35 Employment Tribunals Act 1996, we substitute ours for the Tribunal's judgment, and that will be in accordance with law and necessary, pursuant to the second part of Article 8.
30. It will be noted that the facts in our case are radically different from and weaker than those which allowed for admission of a controversially obtained video in Jones -v- University of Warwick. At worst, on the material provided to us, the Respondent in the instant case is guilty of a failure properly to advise the Applicant that his business conversations with customers would be recorded, and the Court, of course, was alive in Jones to the possibility that it would give the wrong signal to insurers in that case, to go out and break the law. We do not consider any such consequence is likely to occur, as a result of the decision which we have made.
31. The Tribunal has, within Article 6, to subsume an argument under Article 8. Article 6 requires the fairness of the proceedings as a whole to be considered. It seems to us that there is no difference in principle between the decision as to fairness of the proceedings being taken by a Tribunal of three, or by a single judge without a jury, or in civil proceedings by a judge, or several judges themselves.
32. The Tribunal has in front of it evidence likely to be called by the Respondent in the form of a person who heard the conversation. The Applicant is likely to be called. Submissions can be made, in due course, as to whether or not it was fair, in an industrial sense, for the Respondent to rely upon the material produced when it made its Decision to constitute as gross misconduct language used by the Applicant and to act upon it when dismissing. The Applicant certainly knew that this issue was to be raised. Indeed, in his Originating Application, he explained it to the Tribunal himself. It might be thought odd that he should wish to raise arguments to have it excluded. Nevertheless, the Tribunal dealt with the matter as it was put to it and so do we.
33. We were asked to give general guidance on cases such as this. We think that that would be unhelpful, since our case is to be treated narrowly upon its merits. It will be unusual nowadays for those engaged on the telephone not to be aware of the possibility of their talk being monitored. It cannot be said that evidence will be excluded by an Employment Tribunal which is admissible and probative. Even if it is adduced in breach of some regulatory regime, there is, of course, the statutory route to damages given to a person so affected.
34. Further, the exclusion of evidence of this nature in the present case would result, we feel, in a breach of the Respondent's right under Article 6. It is, for all practical purposes, required to go into the forensic arena with its hands tied behind its back. It would be unable to put forward the elementary data to support its case under section 98(1) and (2), since it has to discharge the onus of showing what the reason for dismissal was. Powers exist within the Employment Tribunal system under Rules 10(3) and 16 to control the supply of material to the public, and to protect the applicant's privacy, and it seems to us that although not actually debarred, see De Keyser Ltd -v- Wilson [2001] IRLR 324 EAT at paragraphs 24 to 25, the practical effect of the Tribunal's Order would be to do so, in respect of the Respondent and to breach its Article 6 rights.

Disposal

35. We propose to allow the appeal; to set aside the Decision; to substitute our Decision that the material in question is admissible in evidence, and to remit the case to a differently constituted Employment Tribunal. We do that because this Tribunal has already decided that it would be a violation of the Applicant's Convention rights for this material to be adduced before it and thus the Respondent's confidence in that Employment Tribunal may be compromised.