Appeal No.	 EAT/206/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 2 July 1999

Before
THE HONOURABLE MR JUSTICE CHARLES
MR D J HODGKINS CB
MR D A C LAMBERT

MR N A GREEN AND MRS J M GOODWIN	APPELLANTS

MRS K A AHMAD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR K GLEDHILL
(of Counsel)
Nicholas Green
Solicitors
12 Carlton Street
Halifax
HX1 2AL
	
For the Respondent	MR C HAY
(Representative)

	MR JUSTICE CHARLES:	The parties to this appeal are a Mr Green and a Mrs Goodwin, who I understand trade together in partnership and a Mrs Ahmad.  

1	The appeal is by the partnership, whom I shall call the “employers” against a decision of the Employment Tribunal, the Extended Reasons for which were sent to the parties on 8 January 1998.  That decision was that the employers should provide information as to, and discovery, concerning the reason that they have advanced in these proceedings as to why Mrs Ahmad was not given employment by them.  

2	The first issue to be determined is whether or not the Tribunal were correct in their conclusion that this material is relevant.  It was argued below and has been argued before us that it is not relevant.  That argument goes in this way:

		(i)	it is accepted that the reason why the employment was not offered is an issue in the proceedings but what is said is that the only relevant part of the reasoning leading to this decision is that the employers have been told by a client that if they were to employ the Applicant the client would no longer give them work, and

		(ii)	it is therefore said that the content of the discussion with the client and the reasons given by the client to the employer are wholly irrelevant.  

3	In our judgment that argument is not correct.  

4	It seems to us, particularly in the area of direct discrimination where the subjective views of the employer are not determinative, that it is of crucial importance that all the circumstances of, and relating to, the reason advanced by the employer for the action taken are gone into by the Court, or are available to be gone into by the Court to the extent it considers appropriate in all the circumstances.  Put at its lowest in this case the relevance of such circumstances would be to test the genuineness of the assertion that the employers did not have any regard at all to the content, or correctness, of the underlying reasoning of their client.

5	It seems to us that any Tribunal considering a claim of discrimination would consider it to be relevant to know what passed between (if I can so describe the client) the informant and the employers and the detail of the employers’ reasoning having regard thereto. That, of itself, would be relevant to the issue whether the employers would have taken the same stance of ignoring the underlying detail of the complaint and its substance if, for example, the Applicant had been a man or the Applicant had been from a different racial group.

6	The test as to relevance can be found in the decision in Wallace Smith Trust Co Ltd v Deloitte Haskins & Sells [1997] 1 WLR 257, the most relevant passages being at 266 G to 268 G, 271G to 272G and 273F to 274A (and see in particular 267B and 272B where the purpose of RSC Order 24 Rule 13 is explained by reference to litigation advantage or disadvantage). For the reasons we have given it seems to us quite clear that the material in this case passes the test as to relevance set out in that case.

7	I would add that our reasoning does not depend on the point as to whether or not the employers are telling the truth in the sense that they had received a communication from a client that if they employed Mrs Ahmad the client would take his, her or its work away.  If our reasoning had been solely based upon that, although it is we understand an issue, inspection of the documents might solve the problem because then the Court could inform the Applicant that the employers  were telling the truth in that sense.

8	The next area for consideration that was raised in the appeal was whether or not the Employment Tribunal should have inspected the relevant document or documents.  

9	As the Wallace Smith case indicates, the decision in Science Research Council v Nasse [1980] AC 1028 shows that the general position is that when confidentiality of documents is raised and established to protect the person to whom the duty of confidence is owed, a Court will look at the documents to check that they (or all of them) satisfy the relevance test.  That is not a universal approach but it is a normal approach.

10	Additionally, as can be seen from, for example, the decision in Soden v Burns [1996] 1 WLR 1512, in particular between 1525F and 1529F when issues as to confidentiality and thus duties to third parties in respect of relevant material are raised, or a third party is alleging or may wish to allege that material should not be produced, the court can and often does give that  third party an opportunity of explaining their position to the Court and advancing their case.  As appears from Soden v Burns, such an approach or practice is based on Morris v The Director of the Serious Fraud Office  [1993] Ch 572.  As appears therefrom those cases involved additional points relating to the position of the third parties to those that arise here.

11	Given our views as to the relevance of the material sought in this case, and the fact that the information was volunteered by the client to the employers, it is to be noted that a balancing act does not arise.  This appears particularly from the judgment of Simon Brown LJ in Wallace Smith at page 273F to 274A and I now cite from that:

“What above all needs to be emphasised is that there is no balancing exercise to be performed under rule 13.  The weighing of loss of confidentiality on the one hand against litigious disadvantage on the other is, obviously, difficult enough at the best of times:  these are wholly disparate interests not readily matched against one another.  Such a task is, of course, necessary if and when a prima facie claim to public interest immunity is made out.  It is not, however, desirable to introduce this difficulty in some diluted form into the present type of rule 13 proceedings; that rather is wholly unnecessary and inappropriate:  see Lord Wilberforce in Science Research Council v Nasse. ...”

As he explains in the passage that immediately precedes that one the relevance of looking at the documents in those circumstances is as to whether particular parts can be blanked out on the basis that they are simply irrelevant.

12	Having regard to the above authorities and notwithstanding the fact that here no balancing act is required it seems to us that having concluded that the primary argument on this appeal (namely that the material is not relevant) is a bad one, the correct approach is to give the client of the employers an opportunity, if he, she, or it so wishes, to assert that the material (or parts of it) should not be particularised and disclosed.  

13	By giving that opportunity to that client it will also enable him, her or it, if so advised, to raise any point they wish on legal professional privilege.  In this context I should add that Counsel representing the employers before us indicated that he thought it unlikely that such a point would be raised, but these are points for the client and it is another factor in our reasoning in taking the course we have to give the client the opportunity, if he, she or it considers it appropriate, to assert any privilege.

14	It is open to us under rule 18 of our rules to join any party to an appeal and, in our judgment, the correct course is for us to provide that, unless within 14 days the client of the employers makes an application to this Tribunal the appeal be dismissed, which will have the consequence that the disclosure and particularisation ordered by the Employment Tribunal must take place.

15	We make it clear that it would be open to the client to make that application ex parte on the basis that he, she or it wishes to try to persuade this Tribunal that his, her or its identity should not be disclosed.  If any such application is to be made I shall direct that it will be made at 10 o’clock during July to me sitting with two other members of this Tribunal.

16	I will also direct that if practical, and if the application is to be made inter partes, that it is also made in the same manner with a view to this matter being resolved by the end of July.

17	Counsel for the employers helpfully indicated that their client could be contacted and told of our decision and so the order will be:  unless an application is made by the client of the employers on or before 19 July 1999, the appeal shall be dismissed with the consequence that the disclosure and particularisation ordered by the Employment Tribunal is to take place.