MRS S OSBORNE v (1) VALVE (ENGINEERING) SERVICES LTD (2) MR G T WEBB [2000] UKEAT 236_00_0803

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 236_00_0803Case No Appeal No. EAT/236/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS S OSBORNEAPPELLANT(1) VALVE (ENGINEERING) SERVICES LTD (2) MR G T WEBBRESPONDENT
Before
His Honour Judge CollinsDate 8 March 2000
[1]APPEARANCES For the Appellant MR D MARTIN (of Counsel) Messrs Fishers Solicitors 6-8 Kilwardby Street Ashby-de-la Zouch Leicestershire LE65 2FU For the Respondents MR R SEABROOK (of Counsel) Messrs Edge & Ellison Solicitors Regent Court Regent Street Leicester LE1 7BR JUDGE COLLINS : This is an appeal from a decision of Mr Threlfell (sitting alone) in the employment tribunal at Leicester on 29th February 2000. It is an appeal against his order that the appellant, Mrs Osborne, should produce to the respondents, Mr Webb and Valve (Engineering) Services Ltd, on or before last Friday, 3rd March 2000, a copy of a tape-recording made by her of a conversation between herself and Mr Webb on 20th October 1999 and a full transcript of that conversation. On the application of Mr Martin last week, I ordered that the time for complying with that order should deferred until further order and since the case between the parties is fixed for a three-day hearing commencing 13th March 2000, I ordered that the hearing of the appeal should be expedited and I have heard it this morning with both parties represented by Counsel.[2]The question at issue is the privilege against self-incrimination. The nature of the application is for unfair dismissal and sex discrimination. In Mrs Osborne's originating application she contends that she was subjected to less favourable treatment from Mr Webb throughout her employment from 1995 until 1999 on account of her sex and she gives particulars. Her employment came to an end in the circumstances set out in paragraph 7 of the rider to her 0riginating application. She maintained that she had an oral agreement from Mr Webb to pay her 10% of the company's profit. In paragraph 7 she says:
"Accordingly I went to see Mr Webb on the 20th October. It soon became clear from our discussions that Mr Webb was not prepared to honour the contractual commitments he had made to me and, further, that he did not seem to understand or appreciate the concerns about how I had been treated. I did not have any confidence that Mr Webb's attitude towards me would improve and accordingly I therefore felt that I had not option but to treat myself as constructively dismissed. Accordingly I resigned with effect from 20th October 1999."
[3]The respondents deal with what happened on 20th October 1999 in paragraph 7.11 of their Notice of Appearance. They refer to the meeting and say:
"… The Applicant then alleged that the Respondent's business was being conducted fraudulently and claimed that she had a number of documents belonging to the Respondent in her possession to prove this. The Applicant threatened to publicise such documents unless the Respondent made her redundant and paid her the sum of £150,000. "
Then it is said:
"Approximately five minutes after the meeting, Mr Webb received a telephone call from the Applicant's husband stating that the meeting between the Applicant and Mr Webb had been tape recorded. …"
It appears that Mrs Osborne had gone to the meeting with her mobile telephone switched one and that Mr Osborne made arrangements to tape the conversation back at home. It is the original tape recording that the respondents want to get their hands on. The objection is that, which the Chairman rejected, Mrs Osborne should not be obliged to disclose it because she is privileged from doing so on the grounds of self-incrimination.[4]One feature of the case I ought to mention immediately is that the respondents, the tribunal and this appeal tribunal have a transcript of the conversation, which was said by the applicant to be a full transcript and which contains material which she wishes to edit out. All the authorities counsel referred me to are cases where privilege is being raised as a justification for refusing to answer questions on oath; alternatively, for refusing to disclose documents. Neither counsel has been able to refer me to a case where a document containing matters which may be self-incriminatory has actually been put into hands of the Court and the other side and the person seeking privilege is has subsequently asked to have them back. I have not heard arguments supported by authority on the status of the document once it has been placed in the hands of the Court or in the hands of the opposite party and I do not, therefore, propose to ground my ruling today on the fact that the document containing incriminating material has in fact been disclosed. The circumstances in which it was disclosed are unclear to me. Mr Seabrook's explanation is that the applicant sent an edited version and an unedited version to the tribunal for the purpose of the tribunal's consideration and that by mistake the tribunal sent the unedited version out to the respondents. I have not been able to verify that and say no more about it.[5]It seems to me that there are two questions to be considered. First, are the contents of the tape recording material; if they are not they should not be admitted in evidence and the question of privilege does not arise. It seems to me that they are clearly material. The unfair dismissal claim is one of constructive dismissal. That depends upon a breach of contract by the respondents. It is abundantly plain from paragraph 7 of the originating application that the breach of contract relied upon by the appellant is what Mr Webb said in the meeting on 20th October 1999. In those circumstances the whole of what was said on 20th October must be in evidence. The applicant, if she is relying on that conversation, cannot be allowed to cherry pick. The paragraph shows that she relies not only on what Mr Webb said, but on Mr Webb's attitude and manner as showing that she did not then have any confidence in him and was entitled to resign. It does not seem to me that in ordinary fairness his attitude and manner can be judged without reference to Mrs Osborne's attitude and manner, because, plainly, what she said will have affected him. It would be unfair to the respondents if Mrs Osborne was entitled to rely on the tape of 20th October 1999 to show what Mr Webb's attitude and manner was without him having an opportunity to show what her attitude and manner was. So that is on the question of materiality. It seems to me plain that the conversation and the evidence about the conversation is material to the claim for unfair dismissal.[6]It is also material, as Mr Seabrook has pointed out, to the claim for sex discrimination because in paragraph 7 she says that on 20th October Mr Webb "did not seem to understand or appreciate the concerns about I had been treated." Mr Seabrook wants an opportunity to demonstrate that the conversation on 20th October 1999 contains no reference to her allegations of less favourable treatment and if he is not allowed to have an opportunity of doing that, then he is denied an opportunity of fairly contesting an allegation made by the applicant herself about the meeting.[7]I can summarise my view on the question of materiality by saying that in relation to any aspect of her case where she relies upon the conversation of 20th October 1999, evidence of what the conversation actually was must be material.[8]Turning to the second question, Mr Martin correctly points out that materiality must take second place to a justified claim for privilege against self-incrimination. This is a case where, he submits, there is serious risk that Mrs Osborne might be prosecuted for blackmail and he has read me the relevant section of the Theft Act 1968 . This question occupied a good deal of the Chairman's reasons. The authorities to which Mr Martin has drawn my attention may be summarised very roughly in this way: the Court must decide whether there are grounds to apprehend danger to the witness and those grounds must be reasonable rather than fanciful. I take that from the judgment of Staughton LJ in Sociedade Nacional de Combustiueis de Angola UEE and others v Lundquist and others [1990] 2 AER 283 which was cited with approval by the Court of Appeal in Den Norske Bank ASA v Antonatus [1998] 3 WLR 711 . The Chairman considered the facts and gave his reasons in paragraph 6 and 7 for concluding that there was no significant danger to the applicant. But it has been pointed out that in the Den Norske Bank case itself the Court of Appeal felt free to interfere with the decision of the trial judge in reaching that conclusion. The facts of the case were so dissimilar that it is not helpful to compare them for the purposes of my judgment. Mr Martin has specifically drawn my attention to the flagged paragraphs at page 7 and 10 of the transcript. These passages clearly contain veiled threats of the kind of which the respondents were well aware and identified in their Notice of Appearance. It would be wrong, I think, to rely upon the decision in Brebner v Perry [1961] SASR 117 to suggest that Mrs Osborne would not be at an increased risk because of this material. It is one thing for Mr Webb to make an allegation that he was blackmailed, it is another thing for there to be an admission in the form of a tape recorded conversation from Mrs Osborne that she had been guilty of making threats.[9]Waller LJ describe the law relating to the privilege against self-incrimination in Den Norske Bank as unsatisfactory. In connection with the imminent implementation of the European Convention of Human Rights on 2nd October 2000 my attention has been drawn to Saunders v United Kingdom (1996) 23 EHRR 313 which established that it was a breach of Mr Saunders' rights under Article 6 of the Convention if evidence which had been obtained from him by compulsion under statutory enquiry was subsequently to be used against him in criminal proceedings. It is noted in Blackstone's Guide to the Human Rights Act 1998 by John Wadham and Helen Mountfield at page 89 that as a result of Saunders the Attorney General has issued guidance to prosecutors ensuring such evidence is not used and that the DTI has adopted a practice of not using admissions made under compulsion to inspectors as evidence in criminal proceedings. It may be, although this is not the place to do it, that the whole law against self-incrimination privilege will have to be looked at again in the light of the incorporation of the Convention. Although, again, I have not heard full argument on the point in the limited time available, it seems to me very likely that if material is compelled from Mrs Osborne by virtue of a tribunal order for production, then the prospects of the prosecution being able to rely on that material is extremely remote. It seems to me that Article 6 and the Saunders case is heavy artillery in favour of the argument that Mrs Osborne's Convention rights would be breached if the prosecution were to use the material. These considerations add support for the tribunal's view that prosecution is unlikely.[10]That does not conclude the matter, because the ambit of the privilege is very widely drawn in the Den Norske Bank case. In the headnote it is said that:
"a witness is entitled to claim the privilege not merely on the ground that an answer might increase the risk of prosecution, but in respect of any piece of information or evidence on which a prosecuting authority might wish to rely in establishing guilt or in determining whether to prosecute …"
This makes the ambit very wide indeed and I suppose it is possible that a prosecutor might decide, on the basis of the material, to institute a prosecution, while recognising that the material could not actually be used for the purposes of the prosecution. But a prosecution in those circumstances would depend entirely on the word of Mr Webb, who was the only other person present, against that of Mrs Osborne. So far no intimation has been given that Mr Webb or the respondents have any desire that Mrs Osborne should be prosecuted and they have indicated that they are prepared to give an undertaking in the terms ordered by the Chairman that the tape or any transcript of the tape or part of it will not be used for any purpose outside the tribunal proceedings. Mr Martin has suggested that to accept such an undertaking would be contrary to public policy, but that is an argument which I reject, as it does no more than uphold Mrs Osborne's rights under Article 6 of the Convention and her common law right not to incriminate herself. To accept such an undertaking would promote those principles of the law rather than the contrary.[11]I shall not repeat the factual matters which the Chairman listed as causing him to believe that there was no significant or risk of any prosecution. It seems to me that the argument was stronger than he thought in favour of disclosure because of the points I have made in relation to the Saunders case and Article 6 of the Convention. I agree with the Chairman that in all the circumstances of the case, those which he has mentioned and those which I have added that there are no reasonable grounds for apprehending danger to the witness on the basis that an undertaking is proffered by the respondents either to this Court, if Mr Seabrook has authority to give it, or to the tribunal if he does not have authority from both respondents to give it to me today.[12]I dismiss the appeal on the grounds: firstly, that the evidence relating to the conversation of 20th October 1999 is material both to the claim for unfair dismissal and for sex discrimination; and secondly, on the ground that I do not believe that there is any reasonable risk of danger to Mrs Osborne from the material being disclosed in the circumstances which I have described. [ The judge asks Counsel for the respondents, Mr Seabrook, whether he has authority on behalf of the respondents to give an undertaking not to use the tape recording or any part of the transcript for any purpose unconnected with the Employment Tribunal proceedings or to disclose it to any other person except for the purpose of the tribunal proceedings' Mr Seabrook took instructions and subsequently gave the undertakings on behalf of both respondents.. ][13]Assuming that the undertaking is given, the order will be for the original tape to be delivered to the respondents' solicitors by 10 o'clock tomorrow morning (Thursday, 9th March 2000) and returned by them to the applicant's solicitors in its original form by noon on the following day (Friday, 10th March 2000). [ Mr Martin, Counsel for the applicant, applies for leave to appeal to the Court of Appeal. ][14]If I had decided this case solely on the basis that the rule giving privilege against self-incrimination is no longer required because of Article 6 of the European Convention of Human Rights then I would have readily given leave, but as I indicated in my judgment I was simply recording the argument to that effect as being one of the factors which I took into account together with all the other factors in concluding that there was no reasonable apprehension of danger to Mrs Osborne. So as it is only one factor among a number of others, and not necessarily the decisive one, I am going to refuse leave to appeal.