United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ENNIS McBRIDE (The Appellant in Person)
For the Respondent	MR BRUCE CARR (One of Her Majesty's Counsel) Instructed by: Messrs Eversheds LLP Solicitors Eversheds House 70 Gt Bridgewater Street Manchester Lancashire M1 5ES


 


SUMMARY

PRACTICE AND PROCEDURE: Case management

Powers of Employment Judge at CMD. Whether she could (a) rule witnesses' evidence irrelevant and inadmissible at trial (b) direct that certain evidence should be heard in private at trial; whether right to a fair trial under Art 6 infringed impermissibly at CMD contrary to Employment Tribunals Rule 17(2).

On appeal, no procedural irregularity upheld. Agreed variation of Employment Judge order endorsed.


 


HIS HONOUR JUDGE PETER CLARK

1. The parties to this matter, which is proceeding before the Manchester Employment Tribunal, are Mr McBride, Claimant, and the Standards Board of England, Respondent. This is an appeal by the Claimant against certain case management orders made by Employment Judge Feeney following a Case Management Discussion (CMD) held on 2 December 2008. The original Orders with Reasons were promulgated on 14 January 2009. The heading (formerly Reserved Judgment) was corrected by the Employment Judge's Certificate dated 6 April 2009. Both the original and corrected versions misstate the date of the hearing. They refer to 19 December, the date on which, it seems, the Judge wrote her decision.

Background

2. The Respondent is a body established under the Local Government Act 2000 (LGA) which oversees the Code of Conduct for Local Government (the Code). The Code sets out standards of behaviour and conduct expected of persons who are members of relevant public authorities (e.g. local councillors). I have been shown Ss57-63 Local Government Act 2000 (LGA). The scheme of the statutory functions exercised by the Respondent involves the use of ethical standards officers (ESO) to investigate complaints about alleged failures by such members to comply with the Code. ESOs manage investigators who carry out much of the investigation work. The Claimant commenced his employment with the Respondent as an investigator on 9 January 2003.
3. During his employment, which continues, the Claimant brought two complaints before the Employment Tribunal. The first, (Case no. 2405068/2008) lodged on 7 July 08, in addition to complaints of sex discrimination with which I am not concerned in this appeal, complained of victimisation on the grounds of his having made protected disclosures, Specifically he alleges that on 7 September 2007 he made a report under the Respondent's whistle blowing policy concerning his head of department and senior ESO, Hazel Salisbury, and that since then he has been subjected to a campaign of bullying, harassment and victimisation by managers. His original complaint against Ms Salisbury was that she had unlawfully interfered in an investigation which he had been conducting since June 2006 into an allegation that a councillor had improperly used his position to benefit himself. It is said by the Claimant that following her appointment in February 2007, contrary to s62 LGA, she began interfering in the case and sought to influence its progress. When he pointed out that she had a conflict of interest, the Claimant contends she took him off the case. He further contends that he made four other protected disclosures.
4. By its response the Respondent admits that the Claimant's report dated 7 September 2007 constituted a protected disclosure. The Claimant's complaint was investigated and the Chair of the Respondent concluded that no further action was required. The Respondent denies that the Claimant was subsequently subjected to bullying harassment and victimisation by the Claimant's managers and further denies that he made any further protected disclosures beyond that of 7 September 2007.
5. By his second complaint (Case No. 2407717/2008) presented to the Employment Tribunal on 26 September 2008, leaving aside his claims of sex and race discrimination, the Claimant also complained of further detriments suffered as a result of his earlier disclosures, namely disciplinary proceedings instituted on 11 March 2008 leading to a written warning following a disciplinary hearing held on 18 August 2008; and secondly a below average assessment at a performance review held on 11 July 2008.
6. By its response to the second claim the Respondent denied any connection between the disciplinary and performance actions, which it contends were properly taken, and the single protected disclosure which it admits.
7. The two claims have now been combined.

Procedural History

8. A first CMD took place on 30 September, when the Claimant was ordered to provide further and better particulars of the first claim. These have been provided in a document dated 27 October 2008. An issue relating to disclosure was referred to a further CMD; specifically, the Respondent's refusal to disclose the report issued by the Respondent and dated 18 December 2007 (the Respondent's Report) into the Claimant's complaint of 7 September (the Claimant's Report) on the grounds that to do so would offend s63 LGA, which restricts disclosure of certain information obtained by ESOs in conducting investigations into complaints of breaches of standards under the Code. A further CMD was adjourned for want of time, and in due course the matter came before Judge Feeney on 2 December at which stage the following issues, listed at paragraph 9 of her Reasons, arose for determination. I have renumbered the issues to allow for two paragraphs (2) in the Reasons.

"9 1) Should the whistle-blowing report and associated documents be disclosed?

(a) If so, should it be disclosed in full or redacted?

(b) Should it be disclosed to the claimant only, or has he permission to show a copy of the report redacted or otherwise to his witnesses?

(2) Should other potentially relevant documents which may be covered by s 63 of 2000 Act be disclosed, redacted and/or the hearing held in private for that part of the evidence.

(3) Should the respondent be ordered to answer the claimant's request for further and better particulars?

(4) Should the claimant be allowed to call the witnesses he wished to call?

(5) Should the hearing or any part of it be heard in private?"

The CMD Determination

9. The Judge determined the five identified issues as follows:

(1) The Respondent's report should be disclosed in a redacted form, together with documents associated with it. At paragraph 24 she held that, contrary to the Respondent's blanket refusal to disclose the Respondent's Report, it was relevant to a certain extent to issues arising in the proceedings and that the majority of that Report did not fall within s63 LGA, although parts, particularly the annexes, did. Her conclusion was that the report be redacted to ensure that no references were included to identify individuals and to remove "all matters relevant to s63". Annexed to the Respondent's Report was the report completed by the Claimant into the conduct of the particular councillor. That report could be removed because it had no relevance to the Claimant's whistle blowing complaint of 7 September 2007 (para. 25). Further, legal advice contained in the Respondent's Report should be redacted on the grounds that such advice was protected by legal professional privilege (para. 26). Random letters or numbers should be used to ensure that individuals were not identified in the redacted documents (para. 27).

(2) In relation to the Claimant's contention that his appraisal in July 2008 was marked down on the grounds that he had made one (or more) protected disclosures, the Judge accepted that it would be necessary to make a comparison with reviews of other investigations which he had conducted. Those investigations were likely to come within the restrictions imposed by s63 LGA. She concluded (para. 28) that those investigation reports should be redacted and that the evidence in relation to those matters should be heard in private on the basis that even when redacted there may be a breach of s63 if the evidence is given in public.

(3) The Judge recorded that issues in relation to further and better particulars were resolved by consent (para. 29).

(4) She decided that seven out of eight witnesses whom the Claimant proposed to call at trial could not give any relevant evidence and ruled that he could not call those seven witnesses. At paragraph 31 she explained why, in her judgment, those seven witnesses could give no relevant evidence.

(5) Save for her ruling at paragraph 28 (see (2) above) the Judge declined to make a ruling on whether any other part or parts of the hearing should take place in private; further application in this respect should be made at the eventual substantive Employment Tribunal hearing (s32). Her Order was as follows:

"(1) the whistle-blower's report and associated documents are discloseable documents and should be disclosed suitably redacted;

(2) the documents relating to the claimant's appraisal as far as they contain material covered by s63 of the Local Government Act 2000 should be redacted, will be considered in private by the Tribunal and will only be disclosed to the parties their legal advisors and any strictly relevant witness (to be agreed);

(3) the claimant's potential witnesses are not relevant and will not be allowed to give evidence save as identified as relevant in para 30 ie. "witness 8";

(4) the hearing or part hearing thereof will be heard in private as identified above any further request for a private hearing should be made in relation to specific matters as preparation makes the issues clear, or at the hearing itself."

The Appeal

10. I heard this appeal on 30 April 2009. Following argument I made the Order seal-dated 5 May 2009 and reserved my reasons due to want of time. Those reasons now follow.
11. The power of the Employment Appeal Tribunal to interfere with Case Management or other interim orders of employment tribunals is limited to three issues as stated by Wood P in Adams and Raynor v West Sussex County Council [19990] IRLR 215;

(a) whether the order was made within the powers given to the Employment Tribunal;

(b) whether the discretion has been exercised within guiding legal principles;

(c) whether the exercise of discretion could be attacked on Wednesbury grounds, i.e. legal perversity.

12. In this appeal Mr McBride first submits that the Employment Judge had no power, sitting alone at a CMD;

(1) to determine which witnesses could or could not be called at the substantive Hearing

(2) to rule on which evidence should be heard in private at the substantive Hearing

13. As to the calling of witnesses, he contends that by virtue of Rules 27(2) and 14(3) of the Employment Tribunal Rules of Procedure 2004 (the Rules) only the tribunal conducting the substantive Hearing may determine which witnesses will be heard.
14. I note that the Rules contained in Schedule 1 to the 2004 Regulations draw a distinction between hearings; that is a case management discussion, pre-hearing review and review hearing and a Hearing (see Regulation 2) which is defined at Rule 26. Mr McBride draws particular attention to Rule 26(2) which provides:

"Any Hearing of a claim shall be heard by a tribunal composed in accordance with section 4(1) and (2) of the Employment Tribunals Act (1996)."

15. The substantive Hearing of Mr McBride's 'whistleblowing' claims will take place before a full three member Tribunal. In certain circumstances, s4 and the Rules provide for certain claims to be heard by an Employment Judge sitting alone (e.g. 'Wages Act' claims).
16. Rule 27(2) provides that, subject to Rule 14(3), at the Hearing a party shall be entitled to give evidence, to call witnesses, to question witnesses and to address the tribunal. Rule 14(3) provides that the employment judge or tribunal (as the case may be) shall make such enquiries of persons appearing before him or it and of witnesses as he or it considers appropriate.
17. Accordingly, Mr McBride submits, it is only the employment judge or tribunal having conduct of the substantive Hearing which can rule on whether or not a potential witness can give relevant and therefore admissible evidence. That question cannot be determined in advance by an employment judge sitting alone at a CMD hearing.
18. Mr Carr QC, on behalf of the Respondent, argues to the contrary. He points to Rule 17(1) which provides that

"Case management discussions are interim hearings and may deal with matters of procedure and management of the proceedings and they shall be held in private."

He asks me to note the wide case management powers of an employment judge sitting alone at a CMD set out in Rule 10, coupled with the overriding objective contained in reg 3. In these circumstances he submits that it simply cannot be right that if, at a CMD, an employment judge concludes that the evidence which a party intends to call at the Hearing is irrelevant to the substantive issues he or she cannot rule that evidence inadmissible in advance of the Hearing thus saving the inconvenience and expense of those parties attending the hearing in line with the overriding objective.

19. I agree with the submissions of Mr Carr and on this aspect raised with the parties the position in relation to applications for witness orders. One of the orders which may be made at a CMD is an order requiring the attendance of any person in Great Britain either to give evidence or to produce documents or information (Rule 10(2)(c)). It is well-established that such orders will only be granted where the witness can give relevant evidence and it is necessary to make the order because the potential witness has not indicated his consent to attend the Hearing voluntarily. As to the first requirement, the Court of Appeal made clear in Noorani v Merseyside TEC Ltd [1999[ IRLR 184 that the assessment as to whether the witness' evidence will be sufficiently relevant to the issues in the case is essentially a matter for the tribunal's discretion (at the CMD stage that will be a Judge alone).
20. It is plain that the effect of refusing a witness order will be that the witness will not attend and give evidence at the substantive Hearing. That is no different from the effect of the Judge's order in the present case. It is a permissible case management order.
21. Turning next to the question of hearings in private (apart from CMDs which are always held in private; Rule 17(1)), the general rule is that Hearings are held in public; that is an important principle of open justice, as Henry LJ made clear in Storer v British Gas plc [2000] ICR 603. However, Rule 16(1) provides that a hearing or part of a hearing may be held in private where the evidence or representations are likely to consist of information (a) which could not be disclosed without contravening a statutory prohibition or (b) has been communicated in confidence.
22. Mr McBride submits that the wording of Rule 16(2);

"where a tribunal or employment judge decides to hold a hearing or part of one in private, it or he shall give reasons for doing so. …"

means that the power to order a hearing or part thereof in private can only be exercised by the tribunal or Judge actually holding that hearing; not by a Judge in relation to some future hearing.

23. That point would have been a good one under the earlier Rules, which did not draw a distinction between tribunals and employment judges (formerly chairmen); see e.g. Rule 6(1) of the 1974 Rules considered by the Employment Appeal Tribunal in Milne & Lyle v Waldren [1980] ICR 138. However, I have drawn the parties' attention to my judgment in Chelsea Football Club PLC v Smith (UKEAT/0262/08/DM 23 June 2008), cited in Harvey, vol 5, Section T785, where I said at paragraph 23:

"23. Finally, in the cross-appeal Mr Reade submitted that the Judge had no jurisdiction to give a direction as to part of the evidence being heard by the full Tribunal in private under Rule 16(1) of the 2004 Employment Tribunal Rules. He referred me to the old Employment Appeal Tribunal case of Milne & Lyle v Waldren [1980] ICR 138 (Waterhouse J presiding). That case was decided on a predecessor to Rule 16(1) of the 2004 Rules, that is Rule 6(1) of the 1974 Rules. It envisaged a ruling by a full tribunal; whereas the present rule 16 specifically refers to a ruling by a tribunal or chairman (now employment judge). I am satisfied that on that wording the judge had power to make the ruling which he did as to the hearing in private of certain confidential aspects of the Claimant's evidence, the substance of which is not challenged in the cross-appeal."

24. Mr McBride has not persuaded me that I should depart from the approach which I took in the Chelsea case.
25. Next, Mr McBride invokes Article 6 of the European Convention on Human Rights, incorporated into domestic law by the Human Rights Act 1998, for the proposition that the Judge fell into error in ruling that part of the substantive hearing in this case should be held in private on the basis that Article 6 gives litigants the right to a public hearing; that is a civil right and Employment Tribunal Rule 17(2) provides that

"Any determination of a person's civil rights or obligations shall not be dealt with in a CMD."

26. I prefer Mr Carr's analysis, that the Article 6 right is a right in the determination of the Claimant's civil right to have a fair and public hearing. It is not a freestanding civil right to a fair hearing which can itself be properly characterized as a civil right. Put another way, what Rule 17(2) is directed towards is the determination of the Claimant's substantive claims.
27. Fourthly, Mr McBride contends that it was premature for the Judge to make final decisions on the question of witnesses at the CMD before disclosure and exchange of witness statements had taken place.
28. I do not accept that the direction in relation to potential witnesses is a 'final decision'. It is a case management order which is capable of variation if circumstances change; see Goldman Sachs v Montali [2002] ICR 1251. For the reasons given earlier I am satisfied that it was open to the Judge at this CMD to rule on the relevance of witnesses whom the Claimant proposed to call but from whom he had obtained no witness statements.
29. Next, Mr McBride argues that the effect of the Judge's Order as to potential witnesses being called by him means that at the substantive hearing the Employment Tribunal will hear only from the Respondent's witnesses (apart from himself). This contravenes his right to call witnesses. He relies on Rule 27(2) to which I have earlier referred, the judgment of Lady Smith in Doyle v Argyll and Bute Council [2007] UKEATS/0052/06. 8 August 2007 and the Judgment of the European Court of Human Rights in Peric v Croatia (34499/06[2008] ECHR 239 27 March 2008).
30. The short answer to the point is that Rule 27(2) does not give a party the right to call witnesses whose evidence is irrelevant to the issues in the case. That proposition is in no way affected by the cases cited to me by Mr McBride. In Doyle the parties attended the Employment Tribunal for a substantive hearing which was then converted into a PHR at which the Claimant was not permitted to call witnesses. His appeal to the Employment Appeal Tribunal was allowed. Lady Smith encapsulated the position thus (paragraph 31):

"Fundamentally though, it is clear to us that the claimant was deprived of a hearing of the sort that he justifiably thought that he was going to be afforded."

31. That is not the present case, where the issue is whether, at a CMD, the Judge in the exercise of her case management powers is entitled to rule that potential witnesses cannot give relevant evidence at the substantive hearing.
32. In Peric the national court refused to here evidence from six witnesses whom the applicant wished to call on the grounds that in its opinion the factual background of the case had been sufficiently established from the parties' statements and the supporting documents. The court nevertheless heard evidence from four witnesses called by the other party. In these circumstances the European Court unsurprisingly held that the applicant had not received a fair hearing. This is, again, a different case from the present but I note that at paragraph 17 the Court said this:

"The Court reiterates that while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts."

33. Applying that principle to the present case I am satisfied that Judge Feeney was not only procedurally (see earlier) but also substantively entitled to rule on the potential relevance of evidence which the proposed witnesses could give at trial and for cogent reasons, set out at paragraph 31 of her Reasons, ruled the evidence of seven out of the eight potential witnesses irrelevant and therefore inadmissible at trial (witness eight encompassing three potential witnesses who could give relevant evidence).
34. Having rejected the first five points taken by Mr McBride in this appeal for the reasons given that leaves one final matter. He contends, in a number of different ways, that the Judge's approach to the question of which documents should be disclosed and could be adduced in evidence and how they should be redacted, coupled with her directions as to which evidence should be heard in private, was legally perverse. Her ruling in this respect is reflected at paragraphs 1, 2 and 4 of her Order.
35. As to that aspect of the appeal, without conceding that the Judge had fallen into error, Mr Carr proposed a way forward to which Mr McBride, following a short adjournment of the hearing before me, agreed. The result of that agreement, which I endorse (see J Sainsbury v Moger [1994] ICR 800) is that I shall revoke paragraphs 1, 2 and 4 of the Judge's Order below and substitute the agreed disclosure provisions which are annexed to my Order dated 5 May 2009, exercising my powers to dispose of the appeal contained in s35(1) Employment Tribunals Act 1996.