United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JOHN HORAN (of Counsel) Instructed by: Messrs Russell Jones & Walker Solicitors 1st Floor St James House 7 Charlotte Street Manchester M1 4DZ
For the Respondents	MS KATIE NOWELL (of Counsel) Instructed by: Legal Services Section Greater Manchester Police 5th Floor, Chester House Boyer Street Manchester M16 0RE


 


SUMMARY

PRACTICE AND PROCEDURE

Appellate jurisdiction/reasons/Burns-Barke

Case Management

The Employment Judge sitting alone at a pre-hearing review was correct in excluding evidence obtained by a covert recording of a discussion by the panel at a capability hearing under Regulations 13 of the Police Regulations 2003 when neither the Appellant nor his representative were present having withdrawn so that the discussion could take place. The decision was within the Judge's discretion. In any event the decision accorded with the EAT judgment in Chairman and Governors of Amwell View School v Dogherty [2007] IRLR 198.


 


HIS HONOUR JUDGE BIRTLES:

Introduction

1. This is the full hearing of an appeal by Mr Williamson from the judgment of Employment Judge Coles sitting at Manchester on 3 July 2009 in a pre-hearing review of Mr Williamson's claim for disability discrimination. Judge Coles decided that a covert recording and transcript of a meeting held by the Respondents ("the evidence") should not be allowed to form part of the Appellant's evidence at the substantive Employment Tribunal hearing.
2. The Appellant was represented by Mr John Horan of Counsel and the Respondents were represented by Ms Katie Nowell of Counsel. I am grateful to both of them for their written and oral submissions.

The material facts

3. Mr Williamson brings a complaint of disability discrimination under the provisions of the Disability Discrimination Act 1995. His disability is that of clinically diagnosed depression and the Respondents accept that he is a disabled person within the meaning of the Act. The Appellant commenced employment as a probationary police constable with the First Respondent on 18 July 2005. By reason of serious concerns relating to operational and performance problems, he was not considered suitable to progress to the position of full police constable and the Appellant and his Police Federation representatives sought, by way of reasonable adjustment, for the Appellant to move into a civilian role with the Second Respondent.
4. During the course of a capability procedure, a meeting was held under Step 5 of Regulation 13 of the Police Regulations 2003 on 9 February 2009. The Appellant was represented by Inspector Hanson of the Police Federation. Present on behalf of the Respondents were Ms Amy Raynor, Human Resources Manager; Inspector David Coop; and Ms Cathy Butterworth, Director of People & Development. Discussions took place when the Appellant and his representative were out of the room. However, for some reason, the Appellant had left his mobile phone running and those discussions were recorded, albeit not always distinctly or clearly. The recording of these private discussions has subsequently been converted on to tapes and a transcript had been prepared and agreed between the parties for the purposes of the hearing before Judge Coles and subsequently myself. The transcript appears at EAT bundle pages 119-132.
5. At the pre-hearing review Mr Horan appeared for the Appellant and Ms Nowell appeared for the Respondents. Mr Horan submitted that the recording and/or the transcript should be admitted at the substantive hearing in order to support his allegation of disability discriminatory conduct. Ms Nowell submitted that both should be excluded as inadmissible on the following grounds:

(a) Public policy reason;

(b) Legal privilege;

(c) They were of little probative use and/or misleading due to the quality of the recording and consequently the incomplete transcript available.

6. Judge Coles read the transcript in full and, at the invitation of Mr Horan, listened in private to relevant sections of two cassette tapes of the recording.

The Employment Judge's judgment

7. Judge Coles decided that neither the transcript nor the tapes were to be admitted at the substantive hearing of the case. He gave an oral judgment which was later transcribed and sent to the parties on 20 July 2009.
8. His reasons for making that decision are contained in paragraphs 8-15 of his judgment. He says this:

"8. The first is that under Rule 14(2) of the Employment Tribunals Rules of Procedure 2004, it is provided as follows:-

"So far as it appears appropriate to do so, the Chairman or Tribunal shall seek to avoid formality in his or 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."

That provision does, in my view, give me a very wide discretion to admit evidence that may not be admissible in other jurisdictions.

9. The second general principle is that I accept the submission advanced by Mr Horan that discrimination cases are, by their very nature, fact-sensitive and that certainly in most, if not all, cases the Tribunal does have to draw inferences from primary facts as it finds to be proven. It therefore follows that a claimant should be permitted to adduce all relevant evidence to support his or her claim so that the Tribunal has all the facts before it to enable it to make findings and, if appropriate and legitimate, to draw inferences from those findings.

10. The third important principle, however, has been enunciated in the case which was considered at length of Chairman and Governors of Amwell View School v Dogherty (2007) IRLR 198, a decision of Employment Appeal Tribunal, in which Mr Recorder Luba QC said this at paragraph 73:-

"In our judgment there is an important public interest in parties before disciplinary and appeal proceedings complying with the 'ground rules' upon which proceedings in question are based. No ground rule could be more essential to ensuring a full and frank exchange of views between members of the adjudicating body (in their attempt to reach the "right" decision) than the understanding that their deliberations would be conducted in private and remain private."

11. That case did, of course, involve an unfair dismissal claim and I was also referred to the case of BNP Paribas v Mezzotero (2004) IRLR 508. Mr Horan assisted me greatly by referring to extracts from the judgment in that case. However it must be remembered that that case involved a situation in which the respondent employer was relying on a submission that a meeting with the claimant herself was "without prejudice" and therefore should be excluded. To that extent, therefore, what the respondent employer was seeking to achieve was to exclude from the Tribunal evidence of what was said between the respondent and the employee herself. I would consider that very different from evidence about what was said in what was believed to be the privacy of the room where the deliberations in this case.

12. It is accepted on behalf of the claimant that the recording was "clandestine". The parties to the meeting believed that they were taking place in private and it is perfectly understandable, in my judgment, that things will be said that would not be said in public. For example, participants could put one end of the merits of the claimant's case forcibly and the other end of the case equally forcibly so as to test the judgments of the people concerned, if necessary by putting "devil's advocate" arguments before themselves. In the privacy of such a situation it should, in my view, be permissible for wide-ranging discussions to take place without there being the obligation thereafter for those parties involved to explain why it was that they said one thing or another. It is also, as occurred here, understandable that on occasions in a serious situation, degrees of levity creep in. Having read the transcript and listened to the relevant parts of the tape and, whilst there was a degree of levity on occasions, I do not regard it as being in any way malicious to the claimant or indicative in an obvious way of any discriminatory attitude on the part of the participants towards the claimant.

13. It seems to me that, in order to override the general principle that such discussions should be excluded from the evidence as a matter of public policy and/or be the subject of legal privilege, as was suggested by Miss Nowell in relation to legal advice that was touched upon during the discussions, there has to be some very cogent reason why the normal principle of excluding it should be overruled. If, to use examples that have been referred to during this hearing, there had been some obvious statement or statements made by one or other of the parties to the discussion which made it clear that they, or some of them, were thinking or acting in a discriminatory way or making statements which provided incontrovertible evidence of that, then of course they should not be excluded.

14. However, having regard to the nature of the claimant's overall case as pleaded and to the comments that were made by the parties to this private meeting, I cannot see that the evidence in the tapes and in the transcript would be such as to assist the claimant in succeeding in a case of disability discrimination when there is ample other evidence in relation to the aspects of his case as it has been pleaded. There was nothing, in my judgment, said by anyone in this private meeting, from which a Tribunal properly directly itself could, on its own, draw an inference of discrimination. That is not to say that I am seeking to "second-guess" or try in advance to make a judgment which is properly within the domain of the Tribunal hearing the case, but nevertheless I have to be satisfied, if I am going to overturn the general principle that I have referred to above, that there is proper ground for me to do so, and by proper ground I do not mean final conclusive judgment but simply sufficient evidence from what was said and what appears in the transcript to justify the general principle begin overturned.

15. It is dangerous, in my judgment, to form conclusions about what people believe or what their attitude so far as discrimination is concerned from things that are said in the privacy of a meeting, unless those words are so clearly indicative of a discriminatory attitude that it would be prejudicial to the claimant to exclude them. I do not consider that the exclusion of this transcript or the tapes in any way prejudices the claimant in the proper prosecution of his case and therefore, since I should only allow it in if I considered that it would, my judgment on the Pre-Hearing Review is that the transcript and the tapes should be excluded from the evidence at the substantive hearing of this claim."

The Notice of Appeal

9. The Notice of Appeal appears at EAT bundle pages 24-29. At the conclusion of the appeal I raised certain matters with Counsel and invited further written submissions. In due course, both Counsel submitted further written submissions.
10. There are effectively three grounds of appeal. I take each ground of appeal in turn.

Ground 1: The Employment Judge applied the wrong test of relevance to the issues in the case

11. The detail of this ground of appeal is set out in paragraph 6.1 of the Notice of Appeal and paragraphs 12-16 of Mr Horan's skeleton argument.
12. Mr Horan invites me to adopt the dictum of Mrs Justice Cox in BNP Paribas v Mezzototero [2004] IRLR 508 at paragraph 36 where she said this:

"It is also widely recognised that proving direct discrimination is not an easy task for any complainant.

… The primary facts from which inferences of unlawful discrimination could be drawn were therefore a vital part of any complaint of direct discrimination before Employment Tribunals. In my judgment, they remain equally important under the Act as amended …"

Mr Horan submits that the same is true for cases of direct discrimination on the grounds of disability.

13. Mr Horan analyses the evidence and submits the following:

(i) Servants or agents of the Respondents clearly regarded the Claimant as not capable of doing anything due to his disability (EAT bundle page 120);

(ii) The servants or agents of the Respondents approached the meeting referred to above in an inappropriate manner, laughing and joking at the Claimant (EAT bundle pages 121-2 and 127);

(iii) The servants or agents of the Respondents clearly misled the Claimant's representative at that meeting by telling him that it was very likely that the Claimant would get another police staff job when, in fact, they had privately stated the view that it was doubtful he would be competent for such a job (EAT bundle page 123);

(iv) The servants or agents of the Respondents looked on the Claimant as "not part of the family of police officers" (EAT bundle page 129);

14. Mr Horan submitted that it follows that the Claimant needed to explore this evidence by asking questions of the members of the panel in cross-examination to find out why "they did and said such things and, if appropriate, to ask the Employment Tribunal to draw inferences, including that of discriminatory motive, from their replies".
15. Mr Nowell relies upon CIBC v Beck [2009] IRLR 740. In that case, the Court of Appeal upheld the decision to allow the disclosure of confidential documents held by CIBC in a race discrimination case. In doing so they relied upon the decision of the House of Lords in Nasse v Science Research Council [1979] IRLR 465 and especially the judgment of Lord Salmond at paragraph 34. In CIBC v Beck, supra, Wall LJ (giving the judgment of the court) said this at paragraphs 22-23:

"22. In our judgment, the law on disclosure of documents is very clear, and of universal application. The test is whether or not an order for discovery is 'necessary for fairly disposing of the proceedings'. Relevance is a factor, but is not, of itself, sufficient to warrant the making of an order. The document must be of such relevance the disclosure is necessary for the fair disposal of the proceeding. Equally, confidentiality is not, of itself, sufficient to warrant the refusal of an order and does not render documents immune from disclosure. 'Fishing expeditions' are impermissible.

23 As to the correction of an error of law committed by a judge who is exercising a judicial discretion, the law is equally clear. The leading case is G v G [1985] 1 WLR 647, which contains references to the well known judgment of Asquith LJ in Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 at 345. For an appeal to succeed, the exercise of discretion which is challenged must, in Asquith LJ's words: 'Exceed the generous ambit within which reasonable disagreement is possible'."

16. Ms Nowell then analyses the four points made by Mr Horan set out above.

Decision

17. I agree with Ms Nowell. The law is clear and, in my judgment, the fact that this is a discrimination case does not in some way take it out of the general principles enunciated by Lord Salmond in Nasse and Wall LJ in the CIBC case.
18. So far as the four points made by Mr Horan are concerned it can equally be argued (as Ms Nowell does) as follows:

(i) The transcript of the recording refers to areas of work it was thought that the Claimant could carry out and be good at, in addition to those the panel felt he could not be able to manage;

(ii) There was no inappropriate behaviour.

(iii) There is no evidence whatsoever of misleading the Claimant's representative. Indeed, there is reference to a number of jobs being available within the Police Force as a whole when taking into account police staff roles;

(iv) There is no evidence to support the contention that the Claimant "was not part of the family of police officers".

Ms Nowell points to that part of the transcript at EAT bundle page 125 where one member of the panel says:

"CB: He would never of been offered under anyone else (inaudible) and all I'm trying to do is to set a new tone for how we because we are a big family aren't we, police family of jobs."

She suggests that rather than the Respondents attempting to exclude the Claimant from the police family they are attempting to include him.

19. Judge Coles read the transcripts and listened to the tapes. Furthermore, he had relevant extracts highlighted to him by both sides. He reached his judgment on the relevance of that evidence in paragraphs 14-15 of his judgment set out above. In coming to his conclusions on the relevance of the transcript he was exercising his judicial discretion. In those circumstances, for an appeal to succeed Mr Horan must demonstrate that Judge Coles came within the test formulated by Asquith LJ in Bellenden (formerly Satterthwaite) v Satterthwaite, supra, and that his conclusions "exceed(ed) the generous ambit within which reasonable disagreement is possible".
20. In my judgment that is the correct test which I must apply in this case. On the material before me I am quite unable to say that Judge Coles exceeded the very generous ambit of discretion which he was entitled to exercise in favour of the Respondent.

Ground 2: The Amwell case

21. This is set out in paragraph 6.2 of the Notice of Appeal and paragraph 17 of Mr Horan's skeleton argument. See also his further written submissions dated 8 January 2010.
22. Mr Horan submits that the Employment Judge was mistaken in his conclusions about the balancing act decision to be made in respect of the competing issue of admissibility against the public interest in not allowing admission of privileged discussion. In Chairman & Governors of Amwell View School v Dogherty [2007] IRLR 198 (hereinafter "Amwell") a full panel of the EAT (Mr Recorder Luba QC, Mr G Lewis and Ms P Tatlow) had to deal with an appeal from an Employment Tribunal in a case where the employee had adduced evidence from unauthorised recordings she had made of the employer's disability and appeal panel hearings, including the private deliberations of the panel members. The EAT held that the Employment Tribunal in that case was right to permit Mrs Dogherty to put in evidence transcriptions of the "open hearing" parts of the proceedings she attended but it erred in law in not barring Mrs Dogherty from making use of her recordings and transcription of the panel's private deliberations. Mr Recorder Luba QC said this at paragraphs 73-74 of his judgment:

"73. In our judgment there is an important public interest in parties before disciplinary and appeal proceedings complying with the "ground rules" upon which the proceedings in question are based. No ground rule could be more essential to ensuring a full and frank exchange of views between members of the adjudicating body (in their attempt to reach the "right" decision) than the understanding that their deliberations would be conducted in private and remain private. How, otherwise, could a member of that body confidently expose for discussion a doubt concerning some evidence about which he or she was unsure? The failure to maintain respect for the privacy of "private deliberations" in this context would have the important consequences of (1) inhibiting open discussion between those engaged in the task of adjudicating and (2) giving rise to a good deal of potential satellite litigation based on "leaks" by particular members of the adjudicating body or from the clandestine or unauthorised recordings of such proceedings.

74. We are far from suggesting some new broad class of common-law public interest immunity in the law of evidence. Rather we confine ourselves to the particular circumstances of this case: a claim for unfair dismissal of an employee which raises issues as to the reasonableness of (and the conduct of) the procedures leading to that dismissal and the confirmation of it. More particularly, a case in which, in the course of those procedures, the employee has agreed in advance (with no suggestion of any prejudice or duress) to withdraw whilst the relevant panel deliberated in private, that panel having undertaken to give (and having subsequently given) full reasons for its decision. The balance between the conflicting public interests might well have fallen differently if the claim had been framed in terms of unlawful discrimination, where the decision was taken by a panel which gave no reasons for its decision, and where the inadvertent recording of private deliberations (or the clear account of one of the panel members participating in those deliberations) had produced the only evidence – and incontrovertible evidence – of such discrimination."

For the purposes of this appeal (and both Counsel agreed) I treat the judgment in the Amwell case as a correct statement of the law and I apply it. Neither Counsel have been able to find any later authority where it is referred to.

23. Mr Horan urges me to read the second part of paragraph 74 of the judgment of Mr Recorder Luba QC as affirming his submission that in a discrimination case the balancing test must be exercised in favour of disclosure of a covert recording that is used in Tribunal proceedings. He says this is so because of the evil of discrimination. In my judgment, that is not what Mr Recorder Luba QC is saying. The critical part of paragraph 74 of his judgment is this:

"The balance between the conflicting public interests might well have fallen differently if the claim had been framed in terms of unlawful discrimination, where the decision was taken by a panel which gave no reasons for its decision, and where the inadvertent recording of private deliberations (or the clear account of one of the panel members participating in those deliberations) had produced the only evidence – and incontrovertible evidence – of such discrimination." (My emphasis)

24. There are a number of matters here which need discussion. First, the statement by Mr Recorder Luba QC is obiter. Second, he is postulating a situation where the only evidence is that of the covert recording of the discussion of the panel taking the decision. That is not the case here. Third, the evidence was "incontrovertible evidence – of such discrimination". That is not the case here.
25. In my judgment, the Employment Judge correctly applied the balancing test in Amwell. The case was cited to him in detail and he heard submissions upon it from both Counsel.

Ground 3: Perversity

26. The very high hurdle an Appellant has to overcome to succeed on an appeal on the ground of perversity is well known. It is set out by Mummery LJ in Yeboah v Crofton [2002] IRLR 634 at paragraphs 93-95. This case does not begin to overcome that hurdle.

Conclusion

27. For these reasons, the appeal is dismissed.

Other matters

28. The grounds of appeal do not address the question of legal advice privilege and I do not therefore deal with it in this judgment.
29. A difficulty in this case was that the matter was dealt with on a pre-hearing review. In my view this was a mistake, although it does not affect this judgment on the merits. I agree with the editors of Phipson on Evidence (17th edition) 2010 at paragraph 39-35 that:

"In general, disputes about admissibility of evidence in civil proceedings are best resolved by the judge at the substantive hearing rather than at a separate preliminary hearing."

In my judgment, what is true for the civil courts is also true for employment tribunals.