A v B [2013] UKEAT 0025_13_1902

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2013] UKEAT 0025_13_1902Case No Appeal No. UKEAT/0025/13
Between
AAPPELLANTBRESPONDENT
Before
Mr Justice KeithDate 19 February 2013
[1]APPEARANCES For the Appellant MR DIRK VAN HECK (of Counsel) Instructed by: FBC Manby Bowdler LLP Rowan House South Sitka Drive Shrewsbury Business Park Shrewsbury SY2 6LG For the Respondent MR JAMES DAWSON (of Counsel) Instructed by: Freeth Cartwright LLP 6 Bennetts Hill Birmingham B2 5ST SUMMARY PRACTICE AND PROCEDURE – Admissibility of evidence Rehabilitation of Offenders Act 1974 – whether employment judge right to rule that justice could not be done without evidence of the employee's spent conviction for kerb-crawling being admitted in evidence. THE HONOURABLE MR JUSTICE KEITH For reasons which will become apparent shortly, this is a case in which the Appellant's anonymity has been preserved by an order prohibiting anyone from publishing anything which might lead to his identification. The Appellant will therefore be known as 'A' and the Respondent as 'B'.[2]A was employed by B from May 2006 until his dismissal in November 2011. Following his dismissal, he lodged a claim complaining that he had been unfairly and wrongly dismissed, and discriminated, victimised and harassed because of his ethnicity. He also made other claims which are not relevant to the particular issue to which this appeal relates. The case was due to be heard at an employment tribunal in Birmingham over ten days starting on 14 January. However, by then an important difference between the parties had emerged. B wanted to rely on A's spent conviction for kerb-crawling. A wanted the tribunal to rule that B should not be permitted to rely on it, and that no reference should be made to it at all. That issue was decided by the employment judge alone. She decided that evidence about it could be given by B, and it is that ruling which A challenges on this appeal.[3]I shall come shortly to the reasons why B claims that justice cannot be done if the evidence about A's conviction cannot be given. First the conviction itself. Kerb-crawling is an offence under section 1 of the Sexual Offences Act 1985 . A was convicted of the offence at a magistrates' court on 31 January 2006. He had pleaded not guilty. He was fined. His appeal to the Crown Court against his conviction was dismissed in May 2006. It is common ground that his conviction was spent within the meaning of that term in the Rehabilitation of Offenders Act 1974 ("the 1974 Act"). It became spent five years after the date of his conviction: see section 5(2) of the 1974 Act. There was an issue in the employment tribunal (which the employment judge has not yet resolved) about whether the date of his conviction should be treated as the date of his original conviction in the magistrates' court or the date of the dismissal of his appeal in the Crown Court, but that was not something which had to be determined for the purposes of this appeal.[4]Once a conviction becomes spent, the person who was convicted becomes "rehabilitated". The effect of someone becoming rehabilitated is set out in section 4 of the 1974 Act. For present purposes, section 4(1) is the relevant section. It provides:
"Subject to sections 7 and 8 below, a person who has become a rehabilitated person for the purposes of this Act in respect of a conviction shall be treated for all purposes in law as a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offence or offences which were the subject of that conviction; and notwithstanding the provisions of any other enactment or rule of law to the contrary, but subject as aforesaid – (a) no evidence shall be admissible in any proceedings before a judicial authority exercising its jurisdiction or functions in Great Britain to prove that any such person has committed or been charged with or prosecuted for or convicted of or sentenced for an offence which was the subject of a spent conviction; and (b) a person shall not, in any such proceedings, be asked, and, if asked, shall not be required to answer, any question relating to his past which cannot be answered without acknowledging or referring to a spent conviction or spent convictions or any circumstances ancillary thereto …"
However, section 4(1) was expressly said to be subject to sections 7 and 8. Section 8 (which relates to actions for defamation) is not relevant for present purposes, but section 7 is. Section 7(3) creates an important exception to the general rule, and provides, so far as is material:
"If at any stage in any proceedings before a judicial authority in Great Britain … the authority is satisfied, in the light of any considerations which appear to it to be relevant …, that justice cannot be done in the case except by admitting or requiring evidence relating to a person's spent convictions or to circumstances ancillary thereto, that authority may admit or, as the case may be, require the evidence in question notwithstanding the provisions of subsection (1) of section 4 above, and may determine any issue to which the evidence relates in disregard, so far as necessary, of those provisions."
[5]A number of things can be said about the exception in section 7(3) to the general rule in section 4(1). The first is that a rehabilitated person's rehabilitation should not be undermined unnecessarily by references to their spent conviction. The conviction has at the very least to be relevant to the issues which the court or tribunal has to decide, because if it is not relevant to any of those issues, the threshold of admissibility under the general law of evidence will not have been crossed. But relevance is by no means the end of the matter. The court or tribunal has to make a judgment about how important the conviction really is to the issues which it has to decide. That is because the critical question is whether the only way in which justice can be done is by admitting evidence of the conviction. There may be cases in which the conviction, though relevant to an issue which the court or tribunal has to decide, is not so important to the fair resolution of that issue that justice cannot be done without evidence of it being given.[6]Prejudice to the party whose previous conviction is sought to be admitted is also a relevant consideration. The court or tribunal, to the words of Evans LJ in Thomas v Commissioner of Police of the Metropolis [1997] QB 813 at p 833C-D:
"… has … to consider whether the likely significance of the fact of a previous conviction in the … eyes [of the court or tribunal] is such that [it] may be unfairly prejudiced against [that party] … The adverb 'unfairly' is a necessary qualification, because some prejudice is inevitable except in cases of total and obvious irrelevance where … the evidence should be excluded in any event. When relevance and prejudice coexist, then the judge can … decide whether the potential prejudice to one party outweighs the prima facie right of the other party to introduce evidence of previous convictions [to the extent that they are relevant.]"
In other words, the court or tribunal will have to balance the relevance of the conviction against the degree of the prejudice which its admission into the evidence would cause.[7]The courts have also had something to say about the "discretion" which the court or tribunal has under section 7(3). Section 7(3) used the language conventionally associated with the court or tribunal having a discretion in the matter: the court or tribunal "may admit or, as the case may be, require the evidence in question". But in the truth the court or tribunal is not exercising a discretion at all. It is making a judgment about whether justice can or cannot be done without the evidence of the conviction being admitted. If it decides that justice can be done without the evidence of the conviction being admitted, it will not be admitted. If it decides that justice cannot be done without the evidence of the conviction being admitted, it will be admitted. That is what Sir Richard Scott V-C (as he then was) said in Thomas at p 819C-D. Evans LJ said much the same thing at p 833A when he spoke of section 7(3) calling for "a single exercise of judgment".[8]The European Convention on Human Rights also has a role to play here. Once a conviction becomes spent, disclosing it would amount to an infringement of one's right to respect for one's private life protected by Article 8(1). But that is subject to Article 8(2), which permits a public authority to interfere with that right, amongst other things, for the protection of the rights of others. Those rights include a litigant's right to a fair hearing of their case under Article 6. So if the effect of not admitting the evidence of someone's conviction would prevent a party to litigation from having a fair hearing of their case, admitting the conviction into evidence would not amount to an infringement of Article 8(1). In effect, it produces the same result as the common law has arrived at.[9]Against that background, I turn to what the case is all about. B's case is that A was dismissed because he was thought to have given some of the women employed by B scores according to a combination of their attractiveness, their sex appeal and their willingness to engage in sexual encounters. He was thought to have encouraged some of the men employed by B to join in. He was also thought to have suggested that changes be made to the statement of one of those men who was also being considered for disciplinary action. One of the women – who reported to A – was said to have felt so uncomfortable about working with A in these circumstances that she wanted to distance herself from him. A's case is that he was discriminated throughout his employment because of what he describes as his "British Asian ethnicity". That discrimination included being assigned less responsibility than he deserved, being excluded from opportunities for promotion, and being required to work in an atmosphere which was intimidating, hostile and offensive. He claims that when he complained that he was being treated differently from other members of staff, he was told that his race and culture did not fit, and that he should look for another job, albeit with some compensation from B. He says that the women were scored in an entirely innocuous way to demonstrate "the concept of bonus schemes based on customer scoring in customer satisfaction surveys", and that B used the "ill-informed" complaint of the woman who said that she did not want to work with him as a pretext for dismissing him.[10]The two members of management who A claims were particularly responsible for the discrimination of him before the incident which is said to have given rise to his dismissal were the managing director of the division of B within which A worked and the then operations manager. Neither of them still work for B, and it is not proposed to call either of them to give evidence, but it is said that they both knew of A's conviction. The two members of management who were involved in the decision to dismiss A were his current operations manager, who conducted an investigation into the incident over the scoring of the women, and the finance director who conducted the disciplinary meeting and who made the decision to dismiss A. They will both be giving evidence, as will the human resources director to whom A claims he reported his concerns about his discrimination. She denies that. She says that she knew that A was unhappy about how his career was progressing, but that he never told her that he thought that it had anything to do with his ethnicity until after the investigation had begun into the incident which B says led to his dismissal. All three of them are said to have known about A's conviction.[11]In the light of all this, what is the relevance of their knowledge of A's conviction? B's case is that A's conviction is highly relevant to the issue at the core of the claim of discrimination. If A was treated differently from those members of staff or any hypothetical employee who he names as appropriate comparators, the tribunal will have to consider what the reason for that differential treatment was. If the evidence of his conviction is admitted, the tribunal may find that the reason for the difference in treatment was attributable to the lack of respect there was for him at work in the light of the awareness of his conviction for kerb-crawling. That is what the employment judge appears to have had in mind. Although she was addressing the issue of relevance of the conviction before the case began, she had spent two days reading into the case, and she must be regarded as having had a pretty good idea of what the issues were. The key passage in her reasons is at paragraph 25, which reads:
"The evidence regarding the spent conviction is relevant, in my view, most significantly, to the claim of race discrimination. Between 2009-early 2011 the conviction was not spent. It was known about by [A's] colleagues and in particular [B's human resources director]. It appears to me that if those witnesses cannot give evidence about their knowledge of it, and the extent to which it affected their relationship and dealings with [A] (if at all) they will not be able to give full and honest evidence and the Tribunal will not be able to fairly determine 'why' the events that occurred, did occur. The Tribunal would have to decide 'why' certain things were done or not done without knowledge of one matter which, on [B's] case, explained its conduct. I consider that the evidence should be admitted and cross examination permitted in relation to it."
[12]It is necessary, I think, to flesh out the thinking which lay behind that. The employment judge must have had in mind some of the points made to her by B's then counsel. The principal one had been that if A had been treated differently from other employees, that may have been because of what people thought about him because of his conviction rather than because of his ethnicity. Another of them was that at one stage A had begun to call himself Bill. A says that he did that because his real name shows his ethnicity, and he thought that if he called himself by an English name it might result in him being treated more professionally. B's case is that the real reason why A called himself Bill was because if you google his real name, references to his conviction come up immediately. Unless there was evidence of his conviction, these facts could not be asserted by B, and so justice could not be done to B if evidence of the conviction was not admitted.[13]The employment judge also noted that B's then counsel argued that A's conviction was relevant to propensity and credibility. She said that she was "significantly less convinced about the probative value of the conviction in relation to those matters". In paragraph 26 of her reasons, she said:
"As to propensity, this will turn, obviously, upon the extent to which, if at all, those involved in the investigation into the conduct took the conviction into account, if at all. Further, if, in the context of the wrongful dismissal claim (where the Tribunal must form its own view of what [A] did or did not do) any submission were made that the conviction also supported [B's] case that [A] was guilty of the relevant conduct, I observe that the fact that an individual has an inclination to solicit prostitutes may not go far in proving any particular attitude towards women: an individual may do so but retain respect in women generally. Conversely an individual may never do so but hold women generally in very poor regard. As to credibility, the offence is relatively old."
The employment judge made these observations in the context of whether questions about A's conviction should be restricted. She said that they should not be, adding that "the issues discussed in this paragraph are likely to turn on our overall assessment of the evidence and of the witnesses from whom we will hear".[14]There were 16 separate grounds of appeal in the Notice of Appeal. They were drafted by counsel who represented A at the hearing, not Mr Dirk van Heck who represents A today. He does not pursue some of those grounds, and he accepts that others are no more than a different formulation of other grounds. But one of the core arguments remains, and that is that the employment judge failed to appreciate the need to balance the degree to which A's conviction was relevant to the issues which the tribunal had to decide against the prejudicial effect of the conviction being admitted.[15]I do not agree. The employment judge spelt out the approach she intended to take in paragraph 17 of her reasons. She said:
"Both counsel accept that under s. 7 of the ROA the key question for me to decide was whether justice could be done in this case without the admission of the evidence. I took into account the guidance in Thomas that although the discretion to admit evidence of spent convictions under s.7(3) of the ROA is broad and subject to the overriding requirement that justice should be done, in the context of civil litigation, justice requires the Tribunal to preserve a fair balance between the competing interests of the parties. In particular, when deciding whether to admit evidence of a spent conviction, I must balance the degree of relevance of that conviction against the prejudice that will be occasioned by its admission. Further, and importantly, the discretionary power to admit such evidence cannot be described as a 'discretionary power' in the normal sense. In order to admit the evidence, I must be satisfied that the parties could not have a fair trial if the evidence were excluded: if I am not satisfied that 'justice cannot be done' except by admitting the evidence of the spent conviction, then there is no power to admit it. Conversely, if I am satisfied that justice cannot be done if I do not admit the evidence, in reality, I will have no option but to admit the evidence. In practical terms therefore, the area where the exercise of my discretion is effective is in deciding whether or not justice can be done if the evidence is not admitted. It is key to my determination that I consider fully and properly whether a fair trial can take place without the admission of the evidence. In order to determine that issue I had to carefully consider the relevance of the evidence: no injustice will occur if I decline to admit irrelevant evidence, which, by definition, will be of little, if any, probative value. Relevance, therefore, in my judgment remains key to the determination of the issue."
In my opinion, that was an impeccable summary of the correct approach. For the reasons I have already given, the suggestion made in Mr van Heck's skeleton argument that the employment judge did not appreciate that she still had a discretion not to admit the conviction after she had decided that justice could not be done without admitting the evidence was wrong, as was his suggestion that she had been wrong to conclude that relevance was the key to her determination. To the extent that it said that the employment judge only addressed the question whether A's conviction was relevant to the issues in the case without considering how important its relevance was, again I cannot agree. The language she used in paragraph 25 of her reasons shows that she thought that the evidence was so important that B could not have a fair trial without it.[16]The other key point made today by Mr van Heck is that even if the employment judge had been aware of the need to balance the degree to which A's conviction was relevant against the prejudicial effect of its admission, she had not actually carried out that exercise. He points out that there is no reference in her reasons to the prejudice which A would suffer, that prejudice being, as Evans LJ noted in Thomas at p 834B-D, that "knowledge of a previous conviction for a sexual offence was disproportionately likely to prejudice the [Tribunal] against [him]". Although the employment judge warned herself against ignoring the prejudicial effect on A of the admission of evidence of his conviction, the consequence of her not actually considering it meant that she did not consider whether admitting it would mean that justice could not be done to A.[17]I cannot go along with this argument at all. Evans LJ's comments were made in the context of trial by jury. An employment tribunal is made up of professionals: a legal professional and professionals with experience of both sides of industry. Our system would break down if it was thought that any of them might give disproportionate and inappropriate weight to A's previous conviction, and to hold it against him unfairly. But that is not the principal reason why the argument fails. It fails because the prejudice which A would suffer as a result of the risk that the tribunal might not consider his case fairly if the members of the tribunal knew that he had been convicted of kerb-crawling was never advanced to the employment judge as the nature of the prejudice which A would, or should I say might, suffer if the evidence of his conviction was admitted. The argument which was advanced to her, if paragraph 11 of her reasons is anything to go by, was that the conviction was not relevant, it did not go to A's credibility as a witness or to his propensity to act in the way in which he was alleged to have behaved, and the argument that its admission would have a prejudicial effect was only that it would undermine A's rehabilitation which the 1974 Act was designed to promote. No other argument relating to prejudice was advanced.[18]Mr van Heck did not wish to elaborate orally on the other grounds of appeal, but since he said that he was not abandoning them it is necessary for me to address them. One criticism of the employment judge's reasoning is that she took into account the fact that there was a time – until either January 2011 or May 2011 – when A's conviction was not spent. I am not sure that I agree with the employment judge's view of the relevance of that. What was important was whether A's conviction was known to the relevant members of B's management, and how it informed their thinking of how A should be treated, of why he had been treated in the way he had been, and of what he had actually done when it came to the scoring of the women. But although the employment judge referred in paragraph 25 of her reasons to the fact that the conviction had not been spent during much of A's employment, it is plain from what she went on to say in the rest of that paragraph that she was alive to what the importance of the conviction was. The fact that there had been a time when it had not been spent was not material to the route by which she reached her overall conclusion.[19]Another criticism of the employment judge is that she failed to take into account the fact that B's case on the relevance of A's conviction had changed. B's case had originally been that A's conviction supported B's perception of A as a man who "objectified" women, by which I assume was meant that he regarded them as sex objects. By the time of the hearing before the employment judge, that had ceased to be B's case. It was no longer being asserted that the admission of the conviction could be justified by an argument based on propensity. Again, I disagree with criticism of the employment judge. A litigant's case can change in the course of time, and the function of the court or tribunal is to evaluate the case which is ultimately advanced. That is what the employment judge did.[20]Finally, one of the grounds of appeal (ground 6) alleged that the employment judge impermissibly took into account a whole host of irrelevant factors. In fact, when each of those criticisms are analysed, they are not exclusively allegations that the employment judge took into account things which she should not have done. Let me take the criticisms of her in turn. There are six of them:(i) It will be recalled that the employment judge said in paragraph 25 of her reasons that "if [A's colleagues and in particular B's human resources director] cannot give evidence about their knowledge of [A's conviction], and the extent to which it affected their relationship and dealings with [A] if at all, they will not be able to give full and honest evidence". The point which is made is that the employment judge was saying that the fairness of the trial would only be affected by the exclusion of any reference to A's conviction if it had affected the witnesses' dealings with A. That would not be a sufficient basis for saying that justice could not be done unless the conviction was admitted. That is, in my view, to take a far too literal approach to what the employment judge was saying. The phrase "the extent to which it affected their relationship and dealings [with A]" was shorthand for what they thought of his complaints of differential treatment and his explanation for scoring the women in the way that he did.(ii) The employment judge is criticised for appearing to rely on B's counsel's own search on the internet for what was revealed if A's real name was googled. The employment judge did nothing of the kind. She was simply referring to what googling A's real name would reveal.(iii) The employment judge is criticised for not discerning an inconsistency in B's case, namely that B was saying on the one hand that A had not been subjected to differential treatment, and on the other hand that if he had been, it was because the then operations director and the managing director of the division in which he had worked did so because of his conviction. I doubt whether there is an inconsistency between the two, but if even there was, it did not affect the importance of A's conviction to the case as a whole. It simply undermines the case which B wishes to advance at the trial.(iv) One of the points made to the employment judge was that the conviction was relevant because A had asserted in the course of the investigation that he would not have behaved in the way it was alleged he had behaved because he was happily married and would not have jeopardised his professional reputation by doing something so offensive. It is acknowledged on A's behalf that his assertion to that effect may have seemed "incongruous" in the light of his conviction, but the point which is made is that B did not allege that that had been germane to the decisions taken in the disciplinary process. All that may be so, but the employment judge did not in fact take this point into account. She merely noted that it was one of the points which had been made to her by B's counsel.(v) The employment judge is criticised for thinking that A's conviction might be relevant to his credibility. In fact, as we have seen, she was unpersuaded that the conviction had any probative value when it came to A's credibility as a witness, or indeed to his propensity to do what he was supposed to have done. It was relevant to how B's witnesses perceived A.(vi) The employment judge is criticised for concluding that to exclude the evidence of A's conviction would violate B's right to a fair hearing of the case under Article 6. However, that point adds nothing to the appeal. Once she had concluded that justice could not be done without the evidence being admitted, it had to be admitted both under section 7(3) of the 1974 Act and in order to comply with Article 6.[21]For these reasons, this appeal must be dismissed, but by way of postscript I should add that in the course of the hearing I asked whether A and B might be prepared to agree to the hearing in the tribunal being before an employment judge alone in view of the contention that members of the tribunal, particularly the non-legal members, might be disproportionately swayed by the knowledge that A had been convicted of kerb-crawling. I was told that B was prepared to agree to that but not A. I mention that only to record that fact, but I had decided that whatever the parties' responses to my enquiry would be, it would not affect my ultimate decision as to how the appeal should be disposed of.