Employment tribunal - Procedure - Hearing

Eversheds LLP v Gray: EAT (Judge Clark): 29 November 2011

Rule 16(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, SI 2004/1861, provides, so far as material: ‘A hearing or part of one may be conducted in private for the purpose of hearing from any person evidence or representations which in the opinion of the tribunal or chairman is likely to consist of information… (b) which has been communicated to him in confidence, or which he has otherwise obtained in consequence of the confidence placed in him by another person.’

The employee was a highly experienced solicitor who was recruited by the employer firm of solicitors to open its office in Edinburgh. In July 2008, he joined the employer as an equity partner. In March 2009 he went off sick. In July 2010 he returned to work, but, in September 2010, he went off sick again. His general practitioner diagnosed him as suffering from reactive depression. He brought a claim against the employer for, inter alia, disability discrimination. In setting out his case in his claim form, he referred to a number of discussions between representatives of the employer and his legal adviser (the discussions).

He contended that those discussions did not attract without-prejudice legal privilege. In its response, the employer submitted that passages of the employee’s claim form should be ruled inadmissible at a final hearing because the discussions were privileged. In October 2011, a pre-hearing review (PHR) was held to determine the question of whether the discussions were privileged. The question of whether the PHR should be conducted in public or private was to be determined at the start of the PHR. The judge decided that the PHR should be conducted in public. She held that the holding of the PHR in private was not necessary for the protection of the without-prejudice material. The employer appealed to the Employment Appeal Tribunal (EAT) on the basis that the judge had erred in her application of rule 16(1)(b) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, SI 2004/1861. The appeal would be allowed.

(i) Pursuant to rule 16(1)(b), in determining whether the PHR should have taken place in private, it had been necessary for the judge to have determined, inter alia: (i) whether without-prejudice material was, by its nature confidential; and (ii) whether it was likely that the evidence to be heard at the PHR would consist of confidential information. In the instant case, the judge had not determined either of those points and that amounted to a material error of approach (see [16]-[18] of the judgment).

The judge’s ruling would be set aside and the EAT would proceed to determine the issue (see [18], [19] of the judgment).

(ii) True without-prejudice discussions were confidential. Offers made by any party with a view to settling existing or contemplated litigation were confidential to the parties (see [20] of the judgment).

Further, it was likely that the evidence to be heard at the PHR was genuinely without prejudice and therefore confidential. Accordingly, rule 16(1)(b) was engaged (see [21] of the judgment). Taplin v C Shippam Ltd [1978] IRLR 450 considered.

(iii) Once it had been determined that rule 16(1)(b) was engaged, it was necessary to carry out the balancing exercise between the public policy considerations of the need for a public hearing, so that justice might be seen to be done, and the need for confidentiality in without-prejudice negotiations, designed to resolve existing or contemplated proceedings (see [18] of the judgment). Having conducted that balancing exercise, the PHR should be held in private (see [22] of the judgment). A direction that the PHR should be held in private would be substituted (see [23] of the judgment). Storer v British Gas Plc [2000] 2 All ER 440 considered.

Thomas Croxford (instructed by Eversheds, Cardiff) for the employer; Susan McKie (instructed by Miller Beckett and Jackson, Glasgow) for the employee.