Appeal No.  UKEAT/0069/05/RN

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HS

	At the Tribunal
	On 20 January 2006

 
Before
THE HONOURABLE LADY SMITH
(SITTING ALONE)

 
 
FAIRMILE KINDERGARTEN	APPELLANT

 

MISS GILLIAN MACDONALD	RESPONDENT

 
Transcript of Proceedings
 
JUDGMENT

 

 

 

 

 
	APPEARANCES

 

For the Appellant	Mr Ian Kennedy
Solicitor
Ian Kennedy WS
Glebe End
23 Cramond Village
EDINBURGH
EH4 6NT	
For the Respondent	Mr N MacLeod
Solicitor
Messrs Anderson Strathern
Solicitors
1 Rutland Court 
EDINBURGH
EH3 8EY	

SUMMARY

 
 
The parents of a child at a nursery where the claimant was employed complained to the respondent, the claimant’s employer, that she had struck their child. They and their child were interviewed by the respondent’s solicitor who promised to preserve their anonymity. He provided a report to the respondent which was copied to the claimant. The identities of the child and its parents were duly anonymised. The claimant was dismissed. She had been pregnant at the time and she claimed in respect of automatic unfair dismissal on grounds of pregnancy. She also asserted that her claim covered a claim for unfair dismissal simpliciter.  At a case management hearing, a tribunal chairman had ordered disclosure of the identities of the parents and their child. The respondent appealed the order and the Employment Appeal Tribunal upheld the appeal in respect that it was not necessary for either aspect of the claimant’s claim that she know those identities. The issue of whether or not the claimant had in fact struck the child was irrelevant. In these circumstances, the tribunal should have been slow to interfere with the promise of anonymity. The interests of justice did not require that it be breached.  

THE HONOURABLE LADY SMITH
1.	This is the case of Fairmile Kindergarten against Miss Gillian MacDonald.  This case comes before me by way of appeal from an Order pronounced following a case management discussion.  I will refer to the parties throughout as Claimant and Respondents.
 
2.	This case appears, according to the form lodged with the Employment Tribunal to concern a claim by the Claimant that she was unfairly dismissed since she was dismissed on account of her pregnancy in contravention of the protection afforded by the Sex Discrimination Act 1975.  I am advised by her solicitor Mr Maclean that it is also contended that she was unfairly dismissed simpliciter and seeks to present a claim under reference to Section 98 of the Employment Rights Act 1996.  Mr Kennedy, the Respondents’ solicitor indicated that her ability to do so will be challenged at a later date.
 
3.	3.                  It is however not disputed that the Claimant was dismissed.  The Respondents provide 
daily care for pre-school aged children.  The Claimant was employed by them as a nursery nurse until her dismissal on 28 January 2005.  The case has not yet reached a full hearing before the Employment Tribunal.  A case management discussion took place on 17 May 2005 at Edinburgh before the Chairman Mr N Hosie, sitting alone.  Following that discussion he issued an Order which is set out in his note dated 23 June 2005 which is in the following terms:
“Firstly, the Respondents will disclose to the Claimant’s solicitor within the next 7 days the identity of the parents who it is alleged to make the allegation against the Claimant which led to her dismissal.  Secondly, the identity of the parents is to be kept private by the parties and their representatives.  Thirdly, at all times after disclosure they will be referred to as Mr X and Miss or Mrs Y and fourthly, in the event of the parents giving evidence at a Hearing that part of the Hearing will be conducted in private.” 
4.	The background to the Order is that the Respondents’ decision to dismiss the Claimant is said by them to have been based on a report prepared by their solicitor Mr Kennedy.  That report was according to their case instructed because of their concern regarding allegations that had been made about the Claimant’s conduct towards a child in her care.  In particular they wished investigation to be made into an allegation that had been communicated to them by a set of parents that the Claimant had struck their child on more than one occasion in the course of 2004.  
 
5.	The Respondents’ solicitor interviewed those parents and the child who is said to have been the subject of the Claimant’s unacceptable conduct on 13 January 2005.  The parents requested anonymity for themselves and the child.  The Respondents’ solicitor acceded to that request and the report prepared by him does not identify them.  The report sets out an allegation of gross misconduct in that it is alleged that on 2 separate occasions in about May 2004 the Claimant struck a child in her care on the head and on the face whilst working in the Respondent’s premises.  Such conduct would not only constitute an assault but could in the circumstances be regarded as involving a serious breach of trust.
 
6.	The report was intimated to the Claimant, under cover of a letter from the Respondent’s solicitors dated 14 January 2005 and she was advised that there would be a disciplinary hearing on 20 January 2005 when the allegations in the report would be put to her again and formally.  She was also advised in that letter that she would be expected to respond to them.  A grievance procedure intervened and ultimately the disciplinary hearing was set down for 28 January 2005.  The Claimant did not attend and she was summarily dismissed.
 
7.	At the case management hearing on 17 May 2005 one of the issues raised was a request by the Claimant’s solicitor for the disclosure of the identity of the parents who it was alleged had complained about the Claimant’s conduct towards their child.  Written submissions were lodged with the Chairman thereafter in respect of that application.  The Claimant in that submission and before me today maintained that disclosure of the identity of the parents was necessarily for the fair disposal of the case.
 
The Appeal
8.	On behalf of the Respondents Mr Kennedy began by referring to the Tribunal’s decision.  He noted that it was determined that it was necessary for the fair disposal of the case in what the Chairman referred to as unusual circumstances to pronounce the order that ultimately he pronounced.  This was against the background of the Chairman having observed that the Claimant in terms of natural justice was entitled to know the case she faced.  It was also against the background of the Tribunal having noted that this was a case in which unfair dismissal was alleged and also automatic unfair dismissal in respect of the dismissal being on grounds of pregnancy.  He submitted firstly that the Tribunal had failed to deal with the important need to protect the identity of the child.  Secondly, he submitted that the Tribunal failed to apply the correct testwhich was, in essence, that they required to anticipate the test that would be applied at the full hearing of evidence, namely the familiar test set out in the case of Burchell v British Home Stores [1978] IRLR 379.
 
9.	The Tribunal had fallen into the trap in its comments of substituting its view for the view of the employer.  They seemed to suggest that the Claimant’s solicitor would also be entitled to substitute its view for the view of their employer in the approach they adopted.  The Tribunal had failed to address the fact that the Claimant knew the case against her but had failed to take part in the internal procedures available.  Further, he submitted that the Tribunal had misapplied the case of Science Research Council v Nasse [1979] ICR 921.  It was evident from that case that the Tribunal required to be satisfied that it was necessary for the fair disposal of the case to order disclosure.  Further, they did not deal with the fact that there were assertions from Mr Kennedy that the parents had requested anonymity in this case.  Mr Kennedy referred to the Science Research Council case, to the case of Hussain v Elonex plc [1999] IRLR 420 to the case of Asda Stores Ltd v Thompson and others [2004] IRLR 598 and to the case of Linfood Cash and Carry Ltd v Thomson [1989] IRLR 235.  
 
10.	In conclusion, he submitted that the Tribunal Chairman was blinkered in focus.  He wished to create a compromise situation so as to manufacture circumstances whereby the  Claimant’s solicitor would be allowed to interview the parents.  He had erred in law.  His judgment demonstrated bad logic and bad law.  Further it was submitted that if the paper work was examined one could see in fact that no case under Section 98 of the Employment Rights Act was pled anywhere.  The only issue  that was before him was actually that of whether or not the dismissal was on grounds of pregnancy.  He commented further that the Tribunal had not considered the seriousness of the allegations that appeared to be implied by the Claimant’s approach namely an approach that would have to be that for the evidence to be relevant at all that there would need to have been collusion between him and the Respondents and the report would require to have  been a fabrication by him.  
 
11.	Having listened to the submissions made by the Claimant today Mr Kennedy explained further that today was the first that he had heard of it expressly being the Claimant’s intention to allege that the report was the result of collusion and fabrication.  It was not something that was put before the Tribunal.  He also sought to underline the importance of the question of necessity.  It was not necessary as a matter of law for the Claimant to prove her case to have disclosure.  He further submitted that the Claimant wished to have her cake and eat it.  She would still have available to her all her arguments that arise from the fact of non disclosure of the identity of the parents at the time of dismissal.  The Claimant had not shown that the Tribunal had addressed the correct issues.  He further drew my attention to the fact that the issue focussed today namely the issue of fundamental relevancy was raised before the Tribunal in his written submissions.
 
12.	Turning to the arguments that were advanced  by the Claimant, Mr Maclean somewhat surprisingly, given that it was not foreshadowed by anything said to the Tribunal nor supported by reference to any underlying material, explained that the Claimant’s argument would  as to call Mr Kennedy’s integrity and reliability into question in that it was being alleged by the Claimant that he and the Respondents had colluded in the production of a fabricated report when no parents had ever made the allegations referred to in it.  He required disclosure of the parents’ identity in furtherance of that line.
 
13.	Turning to the case advanced under the Sex Discrimination Act 1975 Mr Maclean commented that the Claimant was faced with an allegation that she struck a child on two occasions and that to meet those allegations she would require disclosure of the parents’ identity.  The comment that the Claimant was faced with an allegation that she struck a child on two occasions was made repeatedly by Mr Maclean.  That comment fails to recognise that what has been put forward by the Respondents in this case which is of relevance both to any unfair dismissal claim and to any claim under Sex Discrimination Act is that they acted on the basis of a complaint from parents and on the basis of Mr Kennedy’s report. The question of whether or not the facts reported in that report regarding what happeeds to the child are accurateis another matter.
 
14.	Recognising perhaps the difficulties for him if the Burchell test was borne in mind Mr Maclean submitted that in respect that this is also a sex discrimination case the Tribunal would have to take a broad view of the evidence as if that somehow justified disclosure of the family’s identity  Mr Maclean under reference of the Science Research Council case drew attention to the fact that the House of Lords had indicated that they were uncomfortable with the formula that previously adopted by the Court of Appeal in respect  that the Court of Appeal had indicated that disclosure in the face of confidence having been promised would only be ordered in very rare cases.  However, it was accepted by him that Mr Kennedy was correct in drawing attention to the fact that the Court of Appeal’s formula that disclosure requires to be essential in the interests of justice appeared to be correct and appears to have been approved by the House of Lords.
 
15.	Mr Maclean indicated that the Chairman had discretion as to whether or not to grant the Order sought and submitted that there were no grounds for interfering with that discretion.  Turning to the fact that Mr Kennedy’s Notice of Appeal had made reference to the parents’ fear of reprisals Mr Maclean submitted that the Chairman had taken account of that but properly discounted it since he had not been given any information that there had been  past incidents which justified that fear.  Regarding the Asda case Mr Maclean sought to distinguish it since the allegations made there involved serious drug dealing.
 
16.	Mr Maclean made a submission under reference to Article 8 of the European Convention on Human Rights.  Whilst Article 8 was a relevant consideration Article 6 was, he submitted, also relevant.  He submitted that whilst the Science Research Council case pre dated the coming into force of the Human Rights Act 1998, its judgments were still appropriate in the light of post Human Rights Act law and jurisprudence.
 
17.	Turning to the case Hussein and Mr Kennedy’s submission that the Claimant had already had details of the allegations made against her provided he submitted that conversely she was facing an allegation relating to uncertain dates that she had struck an identified child and the circumstances were quite different from the Hussein case.  He submitted that the Chairman had recognised the competing interest of both sides and reached the position whereby that confidentiality was preserved as regards the public.  He submitted further that justice required not only to be done but to be seen to be done and that required disclosure in this case.  Finally, he referred to the case of X v Z Ltd [1998] ICR 43 for a submission that case management discussion was for the Tribunal to determine and that an Appellate body should be slow to interfere with those decisions.  His motion was that the appeal should be refused but he would be content if the Order were revised so as to confirm that the child should be afforded the same protection as the parents in this case.
 
Discussion
18.	In his note of 23 June 2005 the Chairman observes that in the end of the day the Tribunal will have to consider whether the Respondents acted reasonably.  That may be correct depending on the outcome of the argument that has yet to come regarding the question of whether or not the Claimant has raised an unfair dismissal claim in addition to her sex discrimination claim.  Assuming for the moment that the Claimant is successful in advancing a claim under Section 98 of the Employment Rights Act 1996 it is not though the only issue they will have to determine.  Since it would be defended by the Respondents on the basis that it was a conduct dismissal they will require to consider the usual and well-known test set out in the case of Burchell v British Home Stores which involves considering whether there is evidence that the employer genuinely believed that the employee had been guilty of misconduct, what information the employer had at the time of dismissal and what investigations had in fact been carried out prior to the decision to dismiss.  The Tribunal would then of course require to consider whether the decision to dismiss fell within the range of reasonable responses open to the employer.
 
19.	So far as the sex discrimination claim is concerned, which the Chairman does not deal with, when it comes to his decision making it would be a matter of deciding whether or not the dismissal was on grounds of pregnancy.  No doubt the Respondents will assert that it was not and pray in aide that the reason for the dismissal was their reaction to Mr Kennedy’s report.  In neither event however can the question of whether or not the Claimant actually struck the child as stated in Mr Kennedy’s report  be a relevant issue in the case.  
 
20.	The Chairman also states:
“It seems to me that in these rather unusual circumstances the claimant’s solicitor is entitled to establish that the Report which the respondents’ solicitor prepared, and on which I understand the decision was taken to dismiss, properly reflects the evidence of the parents.  In my view this is necessary for the fair disposal of the proceedings.”
 
I disagree.  The Chairman has clearly misapprehended the relevant issues in this case and has thus fallen into error.  I cannot see that the accuracy of Mr Kennedy’s report would be a relevant issue in the case at all on either ground of claim.  The issue at the final hearing will not be  what in fact the parents of the child or the child said to the Respondents’ solicitor but in respect of the sex discrimination claim, whether the Claimant was in fact dismissed on grounds of pregnancy or not and if she is successful in advancing Section 98 unfair dismissal claim whether it was fair for the Respondents to dismiss her on the basis of hearsay evidence in circumstances where the identity of her accusers was being withheld from her yet she was called upon to answer the allegations made.
 
21.	In either event the issue will not be whether or not the allegations were well-founded or whether the allegations were accurately reported (in which case it would be necessary to provide the identity of the parents and child).  That is simply beside the point.  In these circumstances it seems to me that the Tribunal fell into error in making the Order that they did.  It is not necessary in the interests of justice and would involve forcing disclosure of their identity upon a family who appear to have provided information on the understanding that they can do so anonymously.  Whilst the promise of anonymity will not be determinative on a disclosure issue as the authorities, particularly the Science Research Council case explained, since the interests of justice may nonetheless require it, there are cases in which if the interests of justice do not require it , it should not to be ordered. The promise of confidentiality should not be overridden likely in such circumstances. Disclosure is something which on the facts and circumstances of this case should not in my view be ordered..  I do not accept that this is a case where it clearly must be the essence of the Claimant’s claims that the preservation of the parents’ anonymity at the time of her dismissal put her in any difficulty.
 
22.	In these circumstances I have no hesitation in allowing the appeal the effect of which will be to strike out the Tribunal’s Order that was appended to the Chairman’s notes to which I have referred.