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The Consequences of Receipt of Confidential Information by an Employment Tribunal

Nicholas Siddall assesses the decision of the EAT in Begraj-v-Heer Manak Solicitors and analyses the guidance to be drawn from the same.

The Facts

The facts of this matter were extreme and, perhaps, surprising. The parties were locked on day 30 of a significant claim of whistleblowing detriment. The matter involved serious allegations of criminal conduct. During the course of the hearing allegations of witness intimidation had been made.

The Employment Judge was approached by the Police in the company of the Regional Employment Judge on the morning of day 25 of the hearing. The precise nature of the information communicated to the Employment Judge was not made plain. However the disclosure was typed information about the Respondents, giving details of “intelligence” received by the police and containing information on investigations into alleged criminal conduct. There was also some information about a claimant. The Employment Judge was asked to keep that information confidential to which she (in conjunction with the REJ) initially agreed. It appears not to have been passed to the lay members.

5 days later, in the course of evidence, a reference was made to criminal conduct and the names of two Police Officers were mentioned. The Employment Judge understood them to be the Officers to whom she had spoken. She disclosed this fact and then, when faced with a later application to recuse herself by the Respondent, withdrew from hearing the matter. The effect of the same was that the hearing was to be adjourned and 30 days of tribunal time was wasted.

The Judgment of the EAT
Langstaff J(P) took the understandable view that the facts of this matter were regrettable. However he made a series of comments as to the proper approach to a recusal application (and any appeal following such a decision). He then went on to address the approach of an Employment Tribunal when receiving confidential information as regards one party.

The response to the specific grounds of appeal
Langstaff J was of the view that a decision of an Employment Tribunal that it should recuse itself from hearing a case would seldom be the subject of successful appeal. Indeed the combined studies of counsel had disclosed only one successful appeal on that ground.

It was contended that the Respondent had waived its right to object to the continued hearing of the case by the Employment Tribunal. That argument was rejected as the issue of waiver had not been argued below and in any event it could not be said that any waiver was a result of the Respondent being in full possession of the facts. Further a delay in seeking recusal did not amount to waiver when the Respondent had reserved its position and as the EAT accepted that the inevitable consequences of a successful application in terms of a fresh hearing was a matter which required careful consideration.

Langstaff J also rejected the suggestion that the Employment Tribunal had erred in failing to recognise that it could compartmentalise (i.e. put from its mind) the prejudicial information. He considered that the reasonably fair minded observer would be concerned as to the ability of the Employment Tribunal to do this when the Judge had held the information for some time without disclosing it.

He finally stated that the fact that only one member of the Employment Tribunal received the information was not a sufficient safeguard of fairness and that the financial consequences of the acceptance of the recusal application were not a valid reason for refusing to accept the same if otherwise it were valid.

General Guidance
Having disposed of the issues on appeal Langstaff J sought to give guidance as to how Employment Tribunals should approach such issues in future. The guidance had been considered and commented upon by the Judges of the EAT and the President of the Employment Tribunals. It is condensed below and can be summarised as follows: 

1. Where a third party proffers information or opinion about the merits of a case, or the parties in it without being invitation the parties should be made aware of what has happened immediately.
2. A different approach is permissible if the contact is not concerning the merits of the case
3. A Judge should re-buff (and if appropriate report) any contact which appears to interfere with their independence. Judges should be free to seek the guidance of senior judges.
4. Generally a person cannot introduce information on the basis that it remains confidential to the decision-maker(s). An obvious exception is in cases of National Security. Other examples are where there is a danger to a person or the exclusion of irrelevant and embarrassing medical records. The issue is one of balance.
5. If information has been received and is not to be disclosed in full (or at all) the Employment Tribunal should inform the parties that this is so and why.

Langstaff J’s final comment is perhaps telling:
“That said, I do not think Judges will go far wrong if they ask how they would wish to be treated if they were in the position of either of the parties, and act accordingly.”

Conclusions
The judgment is perhaps a welcome reminder that the appearance of justice is paramount and the even in a case of extreme financial consequences fairness is the determinative consideration. Further it demonstrates that the best arbiter of bias is the Tribunal hearing the application and in circumstances where they have considered recusal to be appropriate a successful appeal is unlikely. It is to be hope that the guidance of Langstaff J is not regularly called upon by Employment Tribunals but it at least provides a useful guide to litigants (and their representatives) as to the proper approach to fairness when any person seeks to intervene in an Employment Tribunal hearing.