NATIONAL PROBATION SERVICE - TEESIDE v MS S DEVON [2005] UKEAT 0419_05_0308

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2005] UKEAT 0419_05_0308

Case No Appeal No. UKEAT/0419/05

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

NATIONAL PROBATION SERVICE - TEESIDEAPPELLANT

MS S DEVONRESPONDENT

Before

His Honour Judge Serota

Date 3 August 2005

[1]APPEARANCES For the Appellant MR JOHN FALKENSTEIN (of Counsel) Instructed by: Messrs Smith & Graham Solicitors Church Square Chambers Hartlepool TS24 7HE For the Respondent MISS KIRTI JERAM (of Counsel) Instructed by: Messrs Thompsons Solicitors St Nicholas' Building St Nicholas Street Newcastle upon Tyne NE1 1TH SUMMARY Disclosure Although disclosure of confidential documents was ordered, the disclosure was necessary for the fair trial of the claim and the documents were relevant to the issues. HIS HONOUR JUDGE SEROTA QC This is an appeal from a Decision of the Employment Tribunal at Newcastle-upon-Tyne promulgated on 5 May 2005, Mr J Hargrove being the Chairman. The Decision was made at a case management discussion and he ordered disclosure by the Respondents of an investigation report prepared by a Miss Lucia Saiger dated 27 May 2004, any notes of interview compiled by Miss Saiger investigating a grievance by the Claimant and witness statements provided to an appeal tribunal on 2 August by three named young ladies: Jane Allerdyce, Lindsay Bruce and Debbie Peel. I shall come to these circumstances shortly. These documents relate to an internal grievance brought by the Claimant against one of her superiors, Mr Phillips, and an appeal in relation to that grievance. It is also perhaps important to bear in mind that the decision taken by the Chairman was a case management decision. Silber J imposed a stay on this appeal because there was an outstanding application for review but, as I understand it, that application was unsuccessful and the matter was referred to a full hearing by HHJ Clark on 13 July. I should point out that the Order also provided for disclosure of witness statements but witness statements were to be exchanged prior to disclosure of what I would describe as "the grievance documents" in order to prevent contamination, as it is put, of the witness statements. It was perceived that there was a risk that the witness statement might be composed, having regard to the contents of the documents of which the Claimant would otherwise be ignorant.

[2]The background to this matter is as follows. The Claimant was employed as an office supervisor by the National Probation Service in Teeside. She resigned on 7 September of last year and she says that her resignation was tantamount to a constructive dismissal. She had made allegations against one of her superiors, Mr Phillips. It is said that there were difficulties between Mr Phillips and the Claimant's husband who also worked for the Respondent. She raised various concerns in April, I think, of last year. Some matters were addressed by the Respondent but not to the Claimant's satisfaction and the matter was referred to the Respondent's assistant chief officer. Various meetings were held with those concerned. The Claimant was not satisfied and brought a formal complaint of harassment, I think, on 11 March 2004 under the Respondent's harassment policy.

[3]It is important, so far as this appeal is concerned, to have regard to the express provisions of the document issued by the National Probation Service, HR1A Harassment Policy/Procedure. Paragraph 6.4 under "Confidentiality" has this to say:

"It is essential for both the complainant and alleged harasser that all stages of the harassment procedure are thereafter handled in strict confidence even when the investigation is complete. Line managers and others involved in the complaint should continue to respect the confidentiality of the process"

. This is clearly understood and the reasons for imposing confidentiality are doubtless to encourage fellow employees to speak frankly without fear of what they say may get back to persons against whom or in respect of whom they are providing information.

[4]An investigation officer was appointed; that was Miss Lucia Saiger. She interviewed a number of witnesses. I have referred to three of them. Everyone involved was aware that it was a confidential investigation. During the course of the investigation, the person about whom the complaints were being made, Mr Phillips, was temporarily transferred. On 3 rd June, the chief officer of the Respondent informed the Claimant that her complaint had not been substantiated. However, there were some issues that had been thrown up by the investigation as to the manner in which performance was assessed and feedback was given. The Claimant asked whether she might have sight of the report. This was refused. The Claimant maintains that within three weeks of the complaint being dismissed, so as to speak, she began to suffer stress and she went on sick leave. The day after she went sick, she informed the Respondent that she was not satisfied and commenced a grievance procedure. This was not upheld and she was informed about that on 6 August. She resigned on four weeks' notice three days after 6 August.

[5]Her complaint, it has to be said, in her Originating Application, is in generalised and unspecific terms. It reads as follows:

"The Claimant alleges that she was unfairly constructively dismissed as the Respondent failed to take seriously her concerns in relation to the harassment she was suffering from Mr Phillips and also the Respondent also failed to investigation (sic) her complaints adequately. "

The Claimant will allege action resulted in a breach of the implied term of mutual trust and confidence, and the implied term to provide reasonable support, entitling the Claimant to treat her contract of employment as repudiated and entitling her to resign". The Claimant sought disclosure of the documents to which I have already referred. The Respondent objected in a letter which I have seen, dated 7 March 2005. The principal ground upon which objection was taken was that the Claimant knew that at all stages, the procedure in relation to the harassment complaint would be handled in strict confidence and that confidentiality would be maintained throughout.

[6]When the matter came before Mr Hargrove on 12 April, there were evidently submissions as to whether or not disclosure of those documents should be made. He correctly directed himself by virtue of his power to manage proceedings under Rule 10 of the 2004 Employment Tribunal Rules, that disclosure should be ordered if it was necessary to ensure a fair trial of the action. Where confidentiality was claimed, the Tribunal had to balance the parties' interests and the confidentiality of the document against the interests of the other party in seeing documents which might assist his case or damage the other side's case. He was referred to the well-known decision of the House of Lords in Nassé v The Science Research Council

[1978] IRLR 852

and the judgment of the Employment Tribunal, presided over by Arnold J, I think in British Rail Board v Natarajan

[1979] IRLR 45

[7]The Chairman directed himself that an examination was necessary as to whether there was any prima facie prospect of the confidential material being relevant to an issue which arises in the litigation. If it was reasonable to expect that there was a real likelihood or relevance emerging from the examination, it was a question of convenience in each case whether or not the examination should take place at the interlocutory stage of discovery or immediately the matter arose at the trial. The Chairman identified issues as:

"was the Claimant harassed by Mr Phillips, as set out in her grievance letter?"; and "did the Claimant have a belief, based on reasonable grounds prior to her notice of dismissal, that there had been no proper investigation of her grievance at first instance or on an appeal?"

[8]Now it is right to say that there is no complaint made by the complainant about harassment by Mr Phillips per se . Her complaint is that the investigations, based on her grievance and the subsequent appeal were wholly inadequate. It seems to me, as it doubtless seemed to the Chairman, that the evidence that was presented relating to the alleged harassment by Mr Phillips must be of significant importance.

[9]What the Chairman then had to say was this: "1. ………… It seems to me that the documents created during the investigation by Ms Saiger and her reported self (sic) are fundamental documents in relation to both of those issues. The threshold of relevance is clearly established. Next I looked at the assertion by the respondent of confidentiality. This is based upon the confidentiality clause and I am not satisfied that the terms of the confidentiality clause covered the particular circumstances in this case. Its terms did not clearly prohibit disclosure of an investigation report of this kind. The investigation report indicates that people named by the claimant whom she indicated would wish to be interviewed, were interviewed. Most if not all of them are to be called by the claimant in the case and, according to her, had indicated to her in advance that they would cooperate with any inquiry that was ordered. In those circumstances it seems highly unlikely that they would themselves object to the disclosure of statements taken from them in the course of the inquiry. In addition three of the people interviewed in the first inquiry subsequently provided witness statements at the grievance appeal heard by a panel on 2 August 2004. These too are clearly relevant to a fundamental issue in the case. There is mention in the report that Mr Phillips at one stage felt intimidated by the claimant's husband. It is a fundamental condition of disclosure that it is made only for the purposes of tile proceedings If as a result of that disclosure someone involved in the litigation who is to be a witness is intimidated that would be a clear case of an attempt to pervert the course of justice and would also be a contempt of court. Documents disclosed in accordance with an order of the Court can only be used for the purposes of the litigation. The threshold requirement spoken of by Arnold J in the Natarajan case was clearly established. Having read the documents, I am satisfied that their disclosure is necessary for a fair trial of the action and clearly outweighs any obligation that there may have been of confidentiality, although I am by no means persuaded that there was any such obligation. Commonsense dictates that to refuse disclosure of a report is which is directly relevant to a central issue in the case and made by a person who is to be a witness in the case would be an absurdity. I have however stopped short of ordering disclosure of a second report by Miss Saiger dated 15 December 2004, long after the claimant had been dismissed and after the claimant had started her Tribunal proceedings, at this stage upon the basis that there might possibly be a claim to litigation privilege. I give no indication whatsoever of any conclusion upon that point which has not been taken by Mr Falkenstein. The issue of the disclosure of that second report may be raised by the claimant if so advised at the commencement of the substantive hearing. I consider that there is some merit in the respondent's contention that, if the claimant sees in advance the report prior to her witness statement being drafted, she maybe tempted to tailor her statement to support her case based on that disclosure. For that reason I have ordered sequential exchange of witness statements".

[10]Now, it is important to note, as it seems to me, that the Chairman correctly directed himself as to the law, he weighed up the points on both sides and he then read the documents and having read the documents, he expressed his opinion that it was necessary for disclosure to take place for there to be a fair trial. That, as it seems to me, is the appropriate test. It is quite clear, as well, that he considered that the documents were relevant and although my attention has been drawn again to a well-known passage in the decision of the House of Lords in the case of British Aerospace v Green

[1995] IRLR 433

, paragraphs 18-19 in the speech of Lord Millet, it is quite clear firstly that the Chairman was satisfied that the Claimant had demonstrated that disclosure was necessary for disposing fairly of the action and secondly, that the documents were material. This was not a fishing application, so as to speak. He weighed matters and, indeed, refused to disclose a second report prepared by Miss Saiger after the Claimant's employment has terminated. He thought that might be the subject of litigation privilege. He was concerned at a submission that was made by Mr Falkenstein that it is very easy for a party to receive a confidential document like this and tailor his or her evidence accordingly. In order to protect against that, the Chairman ordered sequential disclosure in the unusual

[11]Now, it is also right to say that the way in which the Chairman approached the confidentiality was construed by the Respondent as meaning that he had actually made a finding that the documents were not confidential in a sense that would have precluded the Respondent from making them available to the Claimant while she remained in employment. I am happy to be able to record that the parties have agreed, and the Claimant has acknowledged, that that was not how she treats the decision of the Chairman and the parties have most helpfully agreed a form of words that will enable the Respondent to argue without any fear of the matter having been decided beforehand, at the hearing before the Employment Tribunal that it was perfectly entitled to withhold the documents of which disclosure was ordered when the Claimant asked for them during the course of her employment. Accordingly, the Respondent will be entitled to argue on a blank sheet of paper, so as to speak, that there could be no question of there being any breach of contract on the part of the Respondent or any breach of the implied term of trust and confidence. I do not think in those circumstances that it is necessary for me to say anything about the first ground of appeal.

[12]The second ground of appeal is really to the effect that the Claimant had failed to make out a proper case for disclosure of these documents as they were not relevant and the specific confidentiality when measured against their relevance, militated against their disclosure. I hope that I do justice to Mr Falkenstein's submissions and his careful Skeleton Argument if I abridge it in that way.

[13]It seems to me that there is a relatively short answer to this. The Chairman correctly directed himself by reference to the rules and authorities. He had in mind that it was necessary for the documents to be shown to be relevant and also had in mind that disclosure, particularly of confidential documents, should only be ordered if necessary for the fair trial of the action. He read the documents; he considered that they were. Now, I accept that the Respondent does not fully know what the Claimant's case is in any detail in relation to her complaint about the investigation and appeal. I think it fair to assume and it is right to say that Miss Kirti Jeram – and I do not understand Miss Kirti Jeram to resist of if she does, not with any great degree of energy or enthusiasm – but the case is likely to go something like this: the Claimant is going to say "Look, I was harassed, I have witnesses who say I was harassed. You disbelieve them. You disbelieve me. Therefore, the investigation has to have been flawed and the appeal has to have been flawed". That is an exceptionally difficult argument to run if there was evidence both ways and the person charged with the investigation, Miss Saiger, chose to believe one side rather than the other. The Claimant will have a difficult task because the burden will be on her to show that the Respondent, through Miss Saiger, acted outside the reasonable band of responses. She would have to show that her disbelief of the Claimant's evidence and those of witnesses who supported her was, in effect, outside that band: it must come close to Miss Saiger's decision being perverse. It is not the function of the Employment Tribunal to decide whether the Claimant was right in respect of the harassment or the Respondent. That is not its function. The Respondent might have been able to improve its position had the order that was made by the Employment Tribunal for exchange of witness statements to have stood, but it seems as though the parties have agreed between themselves to suspend exchange of witness statements. Now clearly, on the particular facts of this case, if the Claimant in her witness statement can say no more than what I have described, as I assume that she might be saying: "It was an unfair investigation and an unfair appeal, because my evidence and that of my witnesses was disbelieved", the Employment Tribunal will doubtless look with considerable interest if she seeks to embroider upon that, having seen the disclosed documents.

[14]I am not particularly sympathetic to the Respondent's case that the Claimant is somewhat reluctant to go into details at this stage because it is entirely something of the Respondent's own making that it has not already had sight of her witness statement. That does not, in any way, indicate, so far as I see the matter, that the documents are not relevant; neither does it suggest that they were not necessary to be disclosed for the purposes of a fair trial. I would have to be satisfied that the Chairman misdirected himself as a matter of law, which I am satisfied he did not, or that his discretion was so flawed on well-known principles, that the EAT could intervene and say it was wrong. That is not my view of the matter for the reasons that I have given. In the circumstances, and also bearing in mind this was a case management decision where discretion is involved, and the EAT should be slow to interfere, I can see no reason for interfering with the decision of the Chairman and the appeal therefore must be dismissed.

[15]I am extremely grateful to the parties for their assistance and I would be grateful if they could hand in to the associate the agreement that they have arrived at as to the wording and as to the dates for exchange which the parties have now given. I am particularly concerned that it is in everyone's interest that the hearing date which, I am told, is for 26 September should be met and it must be clearly understood that witness statements will come before disclosure and so the position of the Respondent is to be protected.

order

witness statements first, disclosure of the documents, second.