Kay (t/a Direct Sales Agency) v Newcombe [1997] UKEAT 142_97_2802

EAT

Kay (t/a Direct Sales Agency) v Newcombe

[1997] UKEAT 142_97_2802 · 1997-02-28

JUDGE PETER CLARK :

This is an appeal by the Respondent employer before the Reading Industrial Tribunal against the interlocutory order made by a full Tribunal chaired by Mr J.G. Hollow, refusing to make a restricted reporting order (RRO) under Rule 14 of the Industrial Tribunal Rules of Procedure 1993 ("the Rules"), in proceedings brought by the Applicant complaining inter alia of unlawful sex discrimination. That order was made on 29 January 1997 and the Chairman has helpfully provided reasons for that decision contained in a note approved by him and dated 31 January 1997.

The application for an RRO was made by the Respondent at what was to be the start of a two day substantive hearing of the complaint. It was opposed on behalf of the Applicant. Following refusal of the application the Respondent applied for an adjournment of the hearing in order to permit this appeal. That application was granted.

RRO

The power to make an RRO was first granted to Industrial Tribunals by an amendment to Schedule 9 to the Employment Protection (Consolidation) Act 1978 effected by Section 40 of TURERA 1993. It is now to be found in Section 11 of the Industrial Tribunals Act 1996.

Section 11(1) provides:

"(1) Industrial tribunal procedure regulations may include provision - (b) For cases involving allegations of sexual misconduct, enabling an industrial tribunal, on the application of any party to proceedings before it or of its own motion, to make a restricted reporting order having effect (if not revoked earlier) until the promulgation of the decision of the tribunal.

(6) In this section -

'sexual misconduct' means the commission of a sexual offence, sexual harassment or other adverse conduct (of whatever nature) related to sex, and conduct is related to sex whether the relationship with sex lies in the character of the conduct or in its having reference to the sex or sexual orientation of the person at whom the conduct is directed."

Rule 14 of the Rules provides:

"(1) In any case which involves allegations of sexual misconduct the tribunal may at any time before promulgation of its decision in respect of an originating application, either on the application of a party made by notice to the Secretary or of its own motion, make a restricted reporting order.

(2) The tribunal shall not make a restricted reporting order unless it has given each party an opportunity to advance oral argument at a hearing, if they so wish.

(3) Where a tribunal makes a restricted reporting order -

(a) it shall specify in the order the persons who may not be identified;

(b) the order shall remain in force until the promulgation of the decision of the tribunal on the originating application to which it relates unless revoked earlier; and

The Facts

It is sufficient to record that the nature of the allegations made by the Applicant in support of his complaint of sex discrimination against the Respondent, all of which are strenuously denied, amount to allegations of sexual harassment and therefore fall within the meaning of sexual misconduct for the purposes of the Act and the Rules. It is common ground that in this case the Industrial Tribunal had power to grant or refuse an RRO in the exercise of its discretion.

The Industrial Tribunal's Reasons

It was submitted on behalf of the Respondent that although the substantive hearing was listed for two days in the first instance, the number of witnesses to be called meant that a more realistic time estimate would be four to five days.

Thus, if the Applicant's allegations were reported in the press, and the parties identified, that would mean that there would be a time lag before the reconvened hearing at which the Respondent would have an opportunity to refute those allegations by her own evidence and that of her witnesses. In a sales organisation such as that conducted by the Respondent the initial publicity may be very damaging to her business.

It was common ground that in conversation with an employee of the Respondent, Miss Woodley, the Applicant had indicated that the press would be present at the Industrial Tribunal. In fact a member of the press was present, and made representations to the Tribunal.

The application was opposed by Counsel for the Applicant, who was content that the allegations be reported and accepted the consequences of publicity.

The Industrial Tribunal observe that there are no guidelines as to the exercise of this discretion from the appellate courts, and they approached their task on the following basis:

(1) There is a general principle in the English legal system that proceedings will be heard in public and subject to carefully prescribed limitations may be fully reported in the press.

(2) It accepted that allegations of the type made in this case could be damaging to the Respondent, even if at the end of the day they were rejected by the Tribunal.

(3) It took into account the time lag to which Mr Waters, for the Respondent, had referred and the impact that press reports at different times might have on the readership.

(4) Against that it balanced the plea for openness made on behalf of the Applicant.

Recognising that such reports will always be potentially damaging, as are reports of criminal proceedings, the Tribunal considered the balance to be a fine one, but came down in favour of refusing to make an RRO.

The Appellate Function

Appeals to the Employment Appeal Tribunal are on points of law only. That applies to interlocutory appeals as much as to substantive appeals. Medallion Holidays Ltd v Birch

[1985] ICR 578

; Ashmore v British Coal Corporation

[1990] 2QB 338

; Adams and Raynor v West Sussex County Council

[1990] IRLR 215

The learned Chairman hoped for guidance in the exercise of an Industrial Tribunal's discretion in this type of case. That is a course which we must resist; it is not the function of this Appeal Tribunal to circumscribe the wide discretion afforded by Parliament to Industrial Tribunals.

One example will suffice. From time to time appeals come before this Tribunal against the grant or refusal by an Industrial Tribunal of an order postponing Industrial Tribunal proceedings pending the determination of High Court proceedings between the parties. One such case which went to the Court of Appeal was Carter v Credit Change Ltd

[1979] ICR 908

There, the employer began an action in the High Court against the employee for damages for breach of contract and breach of trust and confidence. Two days later they dismissed him for misconduct and shortly thereafter he presented a complaint of unfair dismissal to an Industrial Tribunal.

The employer applied to the Industrial Tribunal for a postponement of the Tribunal proceedings pending determination of the High Court proceedings. A Chairman granted that application.

The employee appealed successfully against that order to this Appeal Tribunal.

On the employers appeal to the Court of Appeal the Court reversed the Employment Appeal Tribunal ruling and restored that of the Industrial Tribunal Chairman. The EAT's error, so the Court of Appeal found, was to elevate into a general principle the proposition that an Industrial Tribunal must hear an application to it before High Court proceedings are determined, unless there were special reasons or unusual circumstances (per Stephenson LJ 918H).

The proper approach for this Appeal Tribunal is that set out by Arnold J in Bastick v James Lane (Turf Accountants) Ltd

[1979] ICR 778

, 782, in a passage expressly approved by Stephenson LJ in Carter . and Stephenson LJ said:

"Either we must find, in order so to do, that the tribunal, or its chairman, has taken some matter which it was improper to take into account or has failed to take into account some matter which it was necessary to take into account in order that discretion might be properly exercised; or, alternatively if we do not find that, that the decision which was made by the tribunal, or its chairman, in the exercise of its discretion was so far beyond what any reasonable tribunal or chairman could have decided that we are entitled to reject it as perverse."

Counsel accept that we should adopt that approach in this appeal.

The Submissions

Conscious of the need to demonstrate an error of law in this Tribunal's approach, Mr Waters puts his appeal on two grounds.

First, he submits that the Tribunal failed to take into account the limited scope of the RRO. We cannot accept that submission. It is clear that the Tribunal had the express terms of Rule 14 in mind; they set out the effect of the rule in their reasons.

Secondly, he submits that the Tribunal's conclusion was perverse, in the sense that it was an impermissible option. He points to the potential damage to the Respondent and her business if full reporting is permitted; he argues that the Applicant had no legitimate reason for opposing an RRO; further, the right of the press to report the proceedings is unfettered, save as to the identities of the parties and their witnesses. Following promulgation of the Tribunal decision those identities may then be revealed. He argues that the balance in favour of protecting the Respondent, particularly where there was to be a time gap between hearings, points inevitably to the conclusion that an RRO ought to have been made.

In our judgment it cannot be said that this decision was perverse. Parliament has granted a discretion to Industrial Tribunals to decide whether or not to make an RRO; it is not mandatory in cases of sexual misconduct. We should be slow to interfere with the exercise of that discretion. We see no proper grounds for doing so in this case. In our judgment the proper approach of the EAT is as stated Stephenson LJ in Carter at 919D:

"I would lay down no principle except the principle (if it can be called a principle) that the industrial tribunal chairmen should attempt to do justice as best he or she can in each individual case."

Although this Chairman invited guidance from the EAT, we prefer to leave questions of this sort to the good sense of the Industrial Tribunal. It will only be in an extreme case where it will be necessary for us to interfere. This is not one of them.

The appeal is dismissed.