Appeal No. EAT/1212/97 EMPLOYMENT APPEAL TRIBUNAL 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS At the Tribunal On 16 January 1998 Judgment delivered on 20 February 1998 Before HIS HONOUR JUDGE PETER CLARK MR J C SHRIGLEY MR G H WRIGHT MBE LONDON BOROUGH OF CAMDEN APPELLANTS MS M DEMPSTER RESPONDENT Transcript of Proceedings JUDGMENT Revised
APPEARANCES For the Appellants For the Respondent MR DAVID READE (of Counsel) Instructed by: Ms Amanda Kelly Solicitor London Borough of Camden Town Hall Judd Street London WC1H 9LP MR RICHARD ALOMO (of Counsel) Mesrs Lomax Lloyd Jones & Co Solicitors 204 Old Kent Road London SE1 5TY JUDGE PETER CLARK: This is an interlocutory appeal by the London Borough of Camden [ Camden ] the respondent to a complaint of unfair dismissal brought by the former employee, Ms Dempster [ the applicant ] currently proceeding in the London (North) Industrial Tribunal, against an order of a Chairman sitting alone on 3rd September 1997 that Camden should give discovery of certain documents. Written reasons for that order are dated 5th
September 1997. Background The applicant was employed by Camden as a social worker until her dismissal effective on 25th July 1996. On 16th October 1996 she presented her complaint of unfair dismissal. The claim is resisted. On 14th May 1997 the applicant s solicitors wrote to Camden s solicitors requesting certain specific documents, identified at paragraph 2, 3, 4 and 6 of that letter. The documents relate to certain clients of the Social Work Department. There is no dispute but that; (a) (b) those documents are relevant to the issues raised in the applicant s complaint; and they are of a class of documents to which Public Interest Immunity [ PII ] applies. documents. Accordingly, Camden were duty bound to take the PII point and declined to produce the When the matter came before the Chairman he correctly directed himself that it was necessary to balance the principles of confidentiality (PII) with the need for disclosure for the fair disposal of these proceedings. He decided that the interests of justice required that the documents be disclosed and he
ordered accordingly. The Appeal The sole point now taken in this appeal is that the Chairman so ordered without first having inspected the documents himself. We do not accept that in so doing the Chairman fell into error, for the following reasons: (1) Cases arise in which there is an issue as to whether documents are relevant and necessary for the fair disposal of the proceedings or where there is a contents, rather than a class claim for PII. In these circumstances it may be, but is not necessarily, desirable for the Industrial Tribunal to inspect the documents before deciding whether or not to make an order for discovery. Science Research Council v Nasse [1980] AC 1028. (2) That is not this case. Here, the relevance of the documents is not in dispute. The class claim is properly made. Re M [1990] 2 FLR 26. Thus the question is one of balance between the conflicting policy considerations. (3) Below, the Chairman was not invited to inspect the documents by either side. The documents themselves were not available at the Industrial Tribunal hearing. No application was made for an adjournment with a view to the Chairman inspecting them. (4) After some hesitation on the part of Mr Reade we were shown the disputed documents. A brief consideration of the documents satisfied us that:
(a) They were material to the cases advanced by both parties in these proceedings, and (b) provided that the identity of the individuals concerned was masked, there would be no harm to the public interest in disclosure taking place. Mr Alomo, on behalf of the applicant, accepts that such confidentiality must be maintained. In these circumstances we dismissed the appeal. Future Practice We are concerned at the delay which protracted interlocutory proceedings of this sort cause in employment cases. The initial request for discovery was made on 14th May 1997. The substantive dispute between the parties will have been set back by some nine months following the Industrial Tribunal application and this appeal. It may be longer if the matter is taken further. It seems to us that where the need for disclosure, subject to PII, is accepted by the parties, and it is accepted that confidentiality attaching to, in the present case, social work files, will be preserved at all times, a local authority will fulfil its duty by putting the matter before a Chairman and accepting his ruling. It is not necessary to appeal to this tribunal. Further, the authority must not confuse its obligation to take the PII point as a matter of public policy, with a temptation to seek to obtain a tactical advantage in the tribunal proceedings. We hasten to add, that is not this case. On the contrary, we think that this may be
an example of a case in which the authority s Legal Department has been put at a disadvantage in defending this claim, first, because the Social Services Department was understandably reluctant to release its files to its own lawyers because of their confidential nature, and secondly, in making use of that material to support the authority s case that there were good grounds for the applicant s dismissal. Further appeal Having dismissed the appeal, we refused an application by Mr Reade for leave to appeal to the Court of Appeal. However, we directed that the Chairman s Order remain suspended until 14 days after this judgment is handed down, and granted a like extension of time for the application to be renewed before the Court of Appeal. Finally, there will be an order for the applicant s Legal Aid taxation. If it were necessary so to order we shall say that this case is fit for Counsel.