Unison v Nolan & Ors [1995] UKEAT 1244_95_3011

EAT
Unison v Nolan & Ors
[1995] UKEAT 1244_95_3011 · 1995-11-30
For the Appellant MR ROBIN ALLEN Q.C.

MISS ELIZABETH ANDREWS

(Counsel)

UNISON

1 Mabledon Place

London WC1H 9AJ

For the Respondents MR R LAWENSON

(of Counsel)

Liverpool 8 Law Centre

34-36 Prince's Road

Liverpool L8 1TH

MR JUSTICE KEENE : The Respondents to this appeal were NALGO shop stewards in the Liverpool area, employed by Liverpool City Council. At the end of 1992 there emerged strong differences between the Respondents and another group of NALGO members working at the Fairfield Day Centre. Those differences apparently led to complaints by a number of women within the latter group about intimidation, and sexist and unconstitutional behaviour by the Respondents in their capacity as shop stewards. Before any hearing into those complaints took place NALGO amalgamated with COHSE and NUPE to form UNISON, the Appellant union. But the complainants indicated that they wished to continue with their complaints under the Rules of UNISON.Between September 1993 and November 1993 an investigation was carried out on behalf of UNISON by a Mr David Picking, its head of conference and constitutional matters, as to whether the hearing of charges against the Respondents was justified.A letter was sent out dated 3rd September 1993 by the Regional Secretary of the Union to members who might wish to make representations to Mr Picking. Amongst other things it said:
"Accordingly any written submission of specific information and/or request to make verbal representation to the Inquiry must be made by not later than 5 p.m. on Friday, 10th September to me at the above address and marked "Confidential - Addressee Only."
Further arrangements including the timetabling for verbal representations will thereafter be advised to those concerned and such interviews similarly undertaken in confidence."Mr Picking conducted his investigation, although not without some difficulties. His report which has been placed before us, refers to his hearing having been, in his description, picketed during its final two days by some 20+ members, which may have intimidated members. Because many of the witnesses were female and become distressed when giving evidence, he changed the venue for the final day so as to avoid the need for such witnesses, in his words, to run the gauntlet. His report concluded that a hearing of such charges against the Respondents was justified. A useful synopsis of his findings was given by Harrison J in proceedings to which we shall refer in a moment. Harrison J at page 40 of his judgment said this:
"In the summary of his report he concluded, inter alia, that there was evidence of organised attempts by a group led by Mr Noble and Mr Pollitt to gain control of the organisational machinery of the Liverpool Branch of NALGO and that there was evidence of a reign of intimidation by Mr Noble and Mr Pollitt in which the other plaintiffs took an active part. His recommendation relating to the plaintiffs was that there was evidence to suggest that they might be guilty of disciplinary offences and that charges under rule I 2 were justified."
Earlier in his judgment Harrison J referred to the fact that Mr Picking submitted his written report to the General Secretary of UNISON, Mr Jinkinson, and that Mr Jinkinson then made an oral report about the matter to a meeting of the National Executive Committee (NEC) of UNISON on 17th March 1994. The NEC agreed upon that occasion that a disciplinary sub-committee of it should be convened to hear disciplinary charges against the Respondents.Again the judgment of Harrison J helpfully described in more detail what happened at the NEC meeting.
"It is agreed that a copy of Mr Picking's report was not before that meeting and that Mr Jinkinson did not give an oral report of the content of that report to the meeting. He said that he thought it inappropriate as a matter of natural justice to do so because if it were decided to bring charges against the plaintiffs, the disciplinary tribunal would be drawn from those present at the meeting. Mr Jinkinson's recollection was that he had told the meeting that he had studied Mr Picking's report and that there were sufficient grounds for bringing charges against the plaintiffs."
There was some dispute in those High Court proceedings as to the accuracy of that last sentence, but in the event, the learned Judge accepted the account as given by Mr Jinkinson.In due course, the Respondents were informed that a disciplinary hearing to consider charges against them under Part I of the Union Rules would take place on 25th-27th July 1994. By letters dated 1st July 1994 the Respondents were informed by the General Secretary of the Appellant of the Rules under which they were charged and they were given in that letter particulars of the charges. They were charged under Rule 2 of Part I of the Rules, that being the section of the Rules dealing with disciplinary action. Rule I 2 reads as follows in so far as it is relevant to the present proceedings:
"2 Disciplinary action may be taken against a member who:
2.1 disregards, disobeys or breaks the Rules or Regulations of the Union applicable to her or him, or any instruction issued in accordance with the Rules;2.2 acts in a manner prejudicial or detrimental to the Union, her/his branch, Region or Service Group;2.3 commits any deliberate racist or sexist act; ..."The disciplinary hearing was eventually fixed after certain delays for 26th October 1994 and it did begin on that day. However, the Respondents' raised a number of points as to the validity and vires of the proceedings and the proceedings were adjourned so that the Respondents could seek an injunction staying the proceedings. Sedley J granted an interlocutory injunction and the matter then, in due course, came before Harrison J earlier this year.Harrison J gave judgment on 15th September 1995 dismissing the application for an injunction, save in respect of the disciplinary charge under Rule I 2.3. The Union was then free to recommence the disciplinary proceedings on the remaining charges, but as we understand it, so far that has not happened.In the meantime, however, on 19th September 1994 the Respondents had gone onto the offensive and made applications to an Industrial Tribunal under Section 2(1) of the Race Relations Act 1976 claiming racial discrimination (victimisation). The action alleged to amount to such discrimination is stated to be the Union's decision to bring disciplinary charges. The basis for the allegation is stated to be a belief that the decision was made because the Respondents had represented their members by pursuing their complaints of racism at the Fairfield Day Centre. That allegation is denied by the Appellant. It states in its Notice of Appearance to each of the applications that:
"The action taken in respect of the complaints against the Applicant was in no way different to that which would be taken in respect of other members or lay officials of the union against whom complaints about intimidatory, sexist and/or unconstitutional behaviour had been received."
The Respondents subsequently sought an order for discovery against the Appellant, and on 6th November 1995, the Chairman of the Industrial Tribunal in question made such an order. It had been resisted on the basis, according to his stated reasons for his decision:
"... that the issue of Race has nothing to do with the reason for the Disciplinary action against the applicants [ the Respondents ] - ... - and because the statements of which copies are sought were given on the strict understanding that they would be confidential."
The Chairman also reported that the Union urged on him that the makers of the statements had a real fear of intimidation by or on behalf of the Respondents. The Union was argued that the wide order for discovery being sought was a "fishing expedition".The Chairman in his reasons referred to the decision of the House of Lords in Science Research Council v Nasse [1979] ICR 921 and then said this:
"It is said to me by the respondent [ the Union ] that Mr Picking gave undertakings to all witnesses that their statements would remain confidential. This is not stated by him in either his Report or his approved statement, although he does refer to the fear felt by some of the witnesses whom he interviewed.
Paragraph 4 states:
" Some of the witnesses/complainants against the applicants are expressly named in the Disciplinary Charges brought against the applicants and so their involvement is no secret. Twelve people were signatories to a Complaints Renewal letter dated 15 July 1993. In that letter they expressly gave the respondent permission to use, under the respondent's Rules, the evidence that they had given. They were: ..."
and then twelve individuals, mostly women, are named. The Chairman concluded that some disclosure of the material upon which Mr Picking relied in making his recommendations was essential. He said in paragraph 5:
"The Order I have made is limited to that material which cannot objectively be seen to have been tendered on the condition that it would be treated on a confidential basis."
He acknowledged that the Respondents were on something of a "fishing expedition" but said that that was unavoidable in such a case. He also said that he saw the strength in the Union's argument that witnesses should be protected against the risk of intimidation, but he stated that the Respondents should be advised that any such action would be likely to be viewed as a very serious contempt.In the event, he ordered the discovery of Mr Picking's report and copies of the notes of interviews with the Respondents, and with the signatories of the complaints to the Union, in so far as those were set out in paragraph 4 of the reasons, and with a further 12 individuals who had been referred to in the original disciplinary charges.It will be noted from the passages to which we have already referred that there was great emphasis in the Chairman's reasons on the statements to Mr Picking not having been made on a confidential basis. That seems to have been fundamental to his decision as the final sentence of paragraph 5, which we have quoted earlier, indicates.By a letter of 20th November 1995 the Appellant union applied to the Chairman for a review of his decision and order, on the basis(a) that new evidence had become available since the decision and,(b) that the interests of justice required such a review. The Chairman was provided with, amongst other things, a copy of the letter from the Regional Secretary to Doreen McCabe dated 3rd September 1993 being one of those letters of that date to which we have already referred. He also was given statements by three of the female complainants confirming that they had understood that they had given evidence to Mr Picking on a confidential basis.Nonetheless, the Chairman rejected the first ground for a review of his decision stating:
"It is evident that no new evidence has become available since the (second) pre-hearing discussion which resulted in my Decision and Order. All statements now supplied relate evidence which has been available throughout and which has merely not been reduced into statement form before now. A Review on ground 11(1)(d) must, therefore, fail."
He also rejected the other basis for a review, saying that the evidence supporting the complaints against the Respondents were an intrinsic part of these cases.The Union now appeals against the order for discovery, save in so far as the order related to the report by Mr Picking. The Respondents, we have been told, have had that report for some time. The issues today have therefore related to the notes of interviews by Mr Picking which are the remaining documents covered by the order for discovery.On behalf of the Appellant, it is submitted that the documents are confidential and the makers of the documents expect that confidentiality to be maintained; secondly, that the documents sought are not relevant to the issues in the case; thirdly, that it is not necessary for a fair disposal of this case that those documents should be both discovered and produced; and fourthly, that there is a substantial risk that the documents will be used for a collateral purpose to intimidate witnesses or potential witnesses or the makers of the documents.In elaboration of those submissions, Mr Allen contends that where a report is accepted as being made in good faith and as not being the subject of any bias it will not be necessary to grant discovery of documents which were used for the making of that report. He refers to the approach taken, in relation to discovery of documents which go to an affidavit where the affidavit is not attacked on grounds of bias or incompleteness, in the case of R v IRC Ex-parte Taylor [1989] 1 AER 906 . He also has elaborated his fourth point about there being a substantial risk that the documents would be used for a collateral purpose, and in that connection has referred to the decision Church of Scientology v DHSS [1979] 1 WLR 723 . The principal plank of his argument, however, in the submission that the documents now sought are neither relevant nor necessary for a fair disposal of the case.On behalf of the Respondents, Mr Lawenson, on the issue of relevance, asserts that his clients are attacking the report and recommendations of Mr Picking. He says that that report was not fairly compiled, and that the Respondents have always been concerned about the report. He further submits that Mr Picking's report led to the decision to start disciplinary proceedings and therefore its fairness must be relevant. He puts it crisply by saying that if the report is flawed, so then is the decision of the NEC. He goes on also to deal with the allegation that the discovery of these documents is not necessary: it is contended on behalf of the Respondents that such discovery is necessary, because they need to be able to see if Mr Picking compiled his report fairly. On the issue of confidentiality, the principal point advanced by Mr Lawenson is that the case which is referred to in the decision of the Chairman below, that is to say the decision in the case of Science Research Council , was dealing with a very different category of confidential documents from that with which we are dealing now.The basic principle governing the discovery of documents in proceedings such as this is that those sought must be relevant to the issues in the case, and discovery must be necessary for the fair disposal of the proceedings or for the savings of costs. See the decision in Dolling Baker v Merrett [1990] 1 WLR 1205 . Whether documents come into that category is a matter of judgment, and this Appeal Tribunal would only interfere with the decision of the Tribunal below if the latter has misdirected itself in some way.In the present case an important part of the basis of the decision was, as we have already pointed out, that the statements made to Mr Picking, orally or in writing, were not made in confidence.On the application for a review of the decision, the letter dated 3rd September 1993, already referred to, was put before the Tribunal. We have already quoted what seems to us to be the most relevant passage from it. In our view, it would induce those responding to it to understand that their interviews were being conducted in confidence. The three later statements already referred to by female complainants were also evidence that their representations to the investigation were given in confidence. There was also a statement by Mr David Picking put before the Chairman of the Industrial Tribunal, so we are told, that states:
"I emphasised to Mike Loukaides the information would be of confidential nature and that we should indicate to the witnesses that we would pay the utmost respect to the confidentiality of the evidence they gave."
For the sake of clarity, it should be explained that Mr Loukaides was assisting Mr Picking in the conduct of his enquiry.In those circumstances, we find it difficult to understand how it could be concluded that no fresh evidence had been put before the Tribunal at the application for a review, or putting it another way, if all that evidence was in fact before the Tribunal at its original hearing, the original decision must itself be flawed. Whichever way the matter is approached there is no evidential basis for the conclusion reached by the Tribunal on that issue of confidentiality. Since that was of such importance in the Chairman's reasoning, this Appeal Tribunal, in our judgment, is entitled to intervene.We propose to consider the matter afresh in the light of the basic principle referred to earlier on applications for discovery in proceedings such as this. As Lord Wilberforce indicated in the Science Research Council case at page 929, to be discoverable a document must be relevant to an issue in the case. But that is not necessarily sufficient for discovery to be ordered. Relevance is a necessary but not a sufficient condition. The Tribunal has a discretion, and the fact that documents are confidential ones may be taken into account in the exercise of that discretion. In the end the test is whether the discovery is necessary for disposing fairly of the proceedings or for the saving of costs.In applying those tests, it is important to distinguish between what may be relevant to the disciplinary hearing, if and when it resumes, and what is relevant to the proceedings before the Industrial Tribunal. The former would be concerned with whether the complaints made against the Respondents could be proved to be true, and whether the Respondents had any justification for so acting if the complaints were true. But the Industrial Tribunal proceedings are concerned with whether the Appellant's NEC decision fell within Section 2(1) of the Race Relations Act 1976 , in other words, whether the Appellant was thereby treating the Respondents less favourably than in those circumstances it treats or would treat other persons by reason that the Respondents had done an act protected by that subsection. Section 2(1) of the 1976 Act reads as follows:
"(1) A person ("the discriminator") discriminates against another person ("the person victimised") in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has- (a) brought proceedings against the discriminator or any other person under this Act; or (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act; or (c) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person; or (d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them."
As was emphasised in Aziz v Trinity Taxis Limited [1988] 3 WLR 79 the Tribunal will need to be concerned with the motive which caused the allegedly less favourable treatment. The motive for the decision to commence disciplinary proceedings would have to be shown to be consciously connected with the race relations legislation.The Appellant's express position in these proceedings is that it was simply responding to complaints made after investigating that there appeared to be some basis for the complaints. In consequence it may be relevant to see whether the Appellant at the time it made its decision to hold a disciplinary hearing had before it prima facie evidence of conduct by the Respondents justifying such a hearing. In short, the Tribunal will be dealing not with whether the complaints against the Respondents were true, but why the NEC made its decision. It is the NEC's motivation which is the essential subject matter of the proceedings before the Industrial Tribunal.The evidence shows that neither the notes of interview nor the Picking report were provided to the NEC at the time of its decision of 17th March 1994. As it happens, the Respondents already have copies of the Picking report. We have considerable doubts as to whether the notes of the interviews with individual witnesses are even relevant to the issues with which the Industrial Tribunal has to deal. It is difficult to see how the identity of the individual complainants, or the detail of each interview, would be relevant to the issues as we have identified them. The notes of the meetings which the named individuals had with Mr Picking cannot sensibly relate to the issue of whether the NEC of UNISON was motivated to start proceedings against the Respondents because of the alleged anti-racist conduct of the Respondents.We have already referred to the argument advanced on behalf of the Respondents that they are attacking the report and recommendation of David Picking. We are bound to observe that Harrison J in his judgment said this:
"No complaint has been made about the way in which Mr Picking conducted the investigation or about the way in which he completed his report. There is no suggested bias, nor is there any suggestion that the disciplinary hearing would not be a fair hearing. I have very briefly summarised Mr Picking's report. It is, however, a detailed report which self evidently justifies the decision made by the NEC on 17 March 1994."
A little later the learned

Judge continues:

"I cannot see any reasonable NEC refusing to initiate the procedure in the light of the knowledge that now exists. In the circumstances, the defect is a technical one rather than one of substance."
Mr Lawenson accepts that the way in which he now puts the matter before us, namely, that the Picking report was not fairly compiled, was not put in that way to Harrison J, but he says that that was a tactical decision made by Counsel appearing on behalf of the present Respondents. Apparently it is being said that the fairness or unfairness of the Picking report was not something seen as relevant to the decision which Harrison J had to make. We are bound to say that we find that quite astonishing if it is accurate. The fairness or otherwise of the investigation conducted by Mr Picking, and the fairness or otherwise of his report, would have been highly relevant to whether Harrison J granted the relief sought in those proceedings or not. It would have been material on the matter of discretion which was bound to come up, as indeed it did, when it came to the question of whether relief should be granted. We note also that in those proceedings the present Respondents were represented by leading Counsel.It means of course that the way in which the matter is now being sought to be put before us is highly unattractive. It may of course be right that merely because these Respondents have adopted one approach in one set of proceedings, they are not bound in these present proceedings to follow the same approach. It may be that they can change back from the position in September 1995 to a different position before this Appeal Tribunal. More to the point, however, that attack on the report of Mr Picking is not the focus of the Industrial Tribunal application. The applications say:
"On 21st of June 1994 the Respondents informed the Applicant that he would be subjected to disciplinary charges. The Applicant believes that the decision to discipline him results fully or to a substantial degree because he represented his members by pursuing their complaints of Racism."
It is clear from that that the less favourable treatment complained of is the decision to take disciplinary proceedings against each of the Respondents. That was not a decision taken by Mr Picking, but by the NEC of the Appellant union.In so far as the Respondents now go on to advance another argument under the heading of relevance, namely, that the Picking report was a step on the road to the final decision by the NEC and that therefore if that report is flawed, so is the decision of the NEC, that to us seems to be requiring one to attribute the motives of the investigating officer, whatever those motives may have been, to the members of the NEC who made the eventual decision. We cannot see that that is a proper attribution. The Union would be vicariously liable for Mr Picking's actions as an officer in drawing up the report. But the report is not the less favourable treatment complained of in the applications made to the Industrial Tribunal, and it is those applications which identify the issues to which discovery must relate.Details of the complaints about the Respondents will of course be highly relevant in the disciplinary proceedings, but those are not the proceedings in respect of which the order for discovery was sought and made.We say therefore that we have very serious doubts indeed as to whether the notes of interviews are relevant to the issues, when those issues are properly defined. But in any event, we are satisfied that disclosure of those notes is not necessary for that fair disposal of these proceedings, given the disclosure already of the Picking report. Nor is such further disclosure necessary for the saving of costs. Moreover, in R v IRC Ex-parte Taylor at page 916 to 917 the Court of Appeal says this:
"When one applies what Glidewell LJ says to the present case, one sees that counsel for Mr Taylor both here and below said in terms that they are not impugning the truth of Mr Robert's affidavit. He is the decision-maker for the purposes of this case. While that state of affairs lasts, the time for seeking to go behind it by calling for production of Mr Ward's report of 8 September simply has not arrived. It is for those reasons that, in my judgment, at the present time and before the judge it could not be said that the production of the document is necessary for the fair disposal of the issues raised in these proceedings."
We have already quoted from the judgment of Harrison J in the High Court proceedings brought by the present Respondents to indicate the stance taken by the Respondents before him when they indicated in terms, so it seems, that they were not seeking to challenge the fairness of the investigation carried out by Mr Picking. In all these circumstances we can see no justification for going behind that report. The NEC may or may not have had sufficient information before them to arrive at their decision to institute disciplinary proceedings. That is not the relevant issue. These are not judicial review proceedings. The issue is whether the NEC had a motivation which is covered by Section 2 of the Act. That provides in our view a further reason for not ordering discovery of these additional documents now sought.So far as confidentiality is concerned, the argument advanced by the Respondents is that these are not documents that fall into the same category as those being dealt with in the House of Lords authority, Science Research Council v Nasse to which we have referred.We can see little significance in the argument about the different categories of confidential documents. It seems to us that confidentiality may be justified as much on the grounds of fear of intimidation as on the embarrassment which may arise from the disclosure of personal documents, such as health documents.So far as the argument that the documents are necessary because the Respondents need to be able to see if Mr Picking compiled his report fairly, as we have indicated already in dealing with the earlier arguments, that must depend on whether that is the real issue. We do not accept that it is.We take account of the confidential footing therefore on which the interviews by Mr Picking were conducted because we satisfied from what we have seen that they were conducted on such a basis. We also take account in arriving at our decision today of the expressed fears of a number of complainants in statements put before us. We do not say that those fears are necessarily justified, but they lead us to conclude that there is a real risk that these documents would be used for collateral purposes given the widespread allegations of intimidation in this case, were they to be produced to the Respondents. Both those factors of confidentiality and of the real risk of use for collateral purposes are relevant to our decision.For all the reasons which we have indicated, we have come to the firm conclusion that this appeal should be allowed so that the order for discovery will stand only in respect of the Picking report which has already been disclosed and produced to the Respondents. Save in that respect, the order must be quashed.The appeal is therefore allowed to that degree.